§ 3.12 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I beg to move that this Bill be now read a second time. The Bill is one for the constitution of the Law Commission, or, more accurately, two Law Commissions, one for England and Wales and one for Scotland, and its object is for the assistance of these Law Commissions to reform our law. It was on February 7, 1828, that my distinguished predecessor Lord Brougham made his famous speech on law reform which lasted for more than six hours; and if I were to tell your Lordships everything that is wrong with English law I should be rather longer than that.
In Lord Campbell's Lives of the Chancellors, he says of that speech—and this encourages me:It lasted about six hours, during which long period of time, notwithstanding the dryness of the subject, there was seldom any serious danger of the House being counted out.On the other hand, I have been rather put off by the preceding sentence (of course, Lord Campbell never got on with Lord Brougham) in which he says:Brougham's great exploit during the present Session was his memorable speech on law reform, which may now be glanced at with 1141 wonder, although I cannot say that it would be justifiable to condemn anyone actually to read it through unless as a punishment for some grave delict.So, rather put off by that statement, I have decided to speak for rather less than six hours.
My Lords, the law is not a matter only of interest to lawyers. The law concerns every citizen in most of the daily aspects of his life, and if our law needs reforming it is above all in the interests of laymen that it should be reformed. So the first question to justify the Second Reading of this Bill is: does our law need reforming? I have had the privilege of attending a number of conferences of international lawyers from all countries, and I usually find that the first thing they say about English law is, "Of course, your judges are the best in the world". And this is not said just to be polite: it is what they think.
There are, I believe, reasons for that. In most Continental systems of law the reason why litigation is cheaper is that the judges do a great deal of the work which the lawyers do here. I was once on an expert committee which calculated how many judges we in this country should require if we went over to the Continental system. We calculated that the number would be 7,000. In this country, of course, we get our law dirt cheap, because we have only about 60 High Court Judges and some 80 county court judges; with a few stipendiary magistrates in London; and 95 per cent. of crime is dealt with by lay justices or at quarter sessions by recorders, who usually lose compared with what they could gain if they did their ordinary work. It is the constant wonder of foreign visiting judges, I find, how an English High Court Judge, who comes into court knowing absolutely nothing about the case he is going to try, is able, after hearing the'evidence and arguments, to deliver extempore and immediate judgment at the end. I find that they think well, too, of our practice and procedure.
But then, if they are being frank, they add that they think absolutely "mud" of our law. The reason why they think "mud" of our law itself is, first of all, because of its form. Our law, as your Lordships know, is partly statutory and partly Common Law based on decisions made by the Judges. Then if one takes the Public General Acts (and when 1142 one is dealing with a subject like waterways there are a great many Private and Local Acts) we have between 3,000 and 4,000 Public General Acts of Parliament now in force, dating from about 1235. If you had to take down from the shelves all the volumes in which current Acts are contained you would have to take down about 359 different volumes. Some enterprising law publishers have dealt with this by putting them all together, and in that way they come to only 43 volumes. Then there are 99 volumes of Statutory Rules and Orders, Regulations and Statutory Instruments, as well as over 350,000 reported cases. And this, my Lords, is our law.
If you go into a Dutchman's flat and see a book that looks as if it might have something to do with the law, and you ask: "Has that something to do with the law?", he may say "Yes". If you then ask, "What part?", his answer will be, "That is the whole of Dutch law". There are the Commercial Code, the Criminal Code, the Family Code, the Civil Code, and the Code of Procedure. The whole of the Code Napoleon was drafted complete in ten months, and it has stood the test of time.
It really is impossible to go on with our Statute Book in the state in which it is. Take first the Statute Law—and on this I can at least claim the merit of consistency, because I have been saying this rather a long time. I remember that in 1946 I said to the noble and learned Lord, Lord Jowitt, and Sir Stafford Cripps: "Take any subject you like—something very simple—say, the law on getting married (which is naturally very much simpler than the law on getting unmarried) which is just a question of qualifications and formalities". I said, "Where is our law on getting married contained?"
The answer was that it was contained in the Marriages Contracts and Consanguinity Act, 1540; the Marriages Pre-Contract Act, 1548; the Marriages Confirmation Act, 1804; the Marriages Confirmation Act, 1808; the Marriage Act, 1823; the Marriage Act, 1824; the Marriages Confirmation Act, 1825; the Marriage Confirmation Act, 1830; the Marriage Act, 1835; the Marriage Act, 1836; the Marriage Act, 1840; the Marriage (Society of Friends) Act, 1860; the Marriage Confirmation Act, 1860; 1143 the Marriage (Society of Friends) Act, 1872; the Marriages Validity Act, 1886; the Marriage Act, 1886; the Foreign Marriages Act, 1892—think of that, my Lords: marrying foreigners!—the Marriage Act, 1898; the Marriages Validity Act, 1899; the Marriages Legalisation Act, 1901; the Marriages Legalisation Act, 1903; the Provisional Order (Marriages) Act, 1905; the Marriage with Foreigners Act, 1906; the Deceased Wife's Sister's Marriage Act, 1907; the Naval Marriages Act, 1908; the Marriages in Japan (Validity) Act, 1912; the Marriage of British Subjects (Facilities) Act, 1915; and then, typically, the Marriage of British Subjects Facilities (Amendment) Act, 1916; and the Deceased Brother's Widow's Marriage Act, 1921; and the Marriages Validity (Provisional Orders) Act, 1924; the Age of Marriage Act, 1929; the Marriage Measure, 1930; the Marriage (Prohibited Degrees of Relationship) Act, 1931; the Marriage (Naval, Military and Air Force Chapels) Act, 1932; the Marriage (Extension of Hours) Act, 1934 (that sounds rather like licensing law); the Banns of Marriages Measure, 1934; the Marriage Act, 1939; the Marriages Validity Act, 1939; the Marriage (Members of His Majesty's Forces) Act, 1941; the Matrimonial Causes (War Marriages) Act, 1944.
I said to them, "How long is this nonsense going to continue?" They said, "It is all a matter of Parliamentary time". However, they went away and thought about it, and Lord Jowitt then introduced the Consolidation of Enactments (Procedure) Act, under which, provided that the Joint Committee on Consolidation Bills certify that the new Act makes no substantial change in the law, a number of Acts can be put into one Act and use up virtually no Parliamentary time at all. The first Act which was passed under that Act was the Marriage Act, 1949. But I have taken marriage legislation merely as an example. Since then—with assistance, which we should all wish to acknowledge, from the Consolidation Committee—a number of consolidation measures have been passed, but they have barely kept pace with the flood of additional legislation. So to-day our law is very much in the state in which it was then.
Having taken "M" for marriage, one then comes to "M" for markets and 1144 fairs. Does one want to know what the law is on markets and fairs? One starts with a Statute of 1275. Then there is a relatively short one of 1285, which lays down:The King commandeth and forbiddeth that from henceforth neither fairs nor markets be kept in churchyards for the honour of the church"—and so it goes on. There are the Sunday Fairs Act and the Sale of Horses Act, 1555—all this is English law to-day. If one takes maintenance one finds this. In most countries, if you have not the money yourself for litigation—you may not be qualified for legal aid, if legal aid is provided at all—there is nothing to stop you from borrowing money for your action on terms that the man who lends it to you gets part of the proceeds. This is perfectly proper and legal in nearly every country, but is a criminal offence in this country. When—and I have been concerned in such cases—the operation of this law arises in the Court of Appeal, that Court obviously want to modernise things, but they say, "We cannot do so. Look at the old Statutes. Look at the Act of 1275 which says that this is a criminal offence." The reason why it is a criminal offence is that in the Middle Ages the Barons (if I may refer to your Lordships' ancestors in that way) used to have on their staffs people called maintainers. The job of the maintainer was to harass the Baron's opponents with frivolous litigation. I should love to have been a maintainer! I do not pretend to be an authority on the social habits of the hereditary Peerage of England, but so far as I know your Lordships do not have any maintainers now. But because we did in the Middle Ages, and because it is nobody's job to reform the law, this is still the law to-day.
We are not in a much better position when we come to the Common Law. because here, of course, judges are bound by precedent. Once a thing has been decided by a court which is high enough no judge can fail to apply the law as it is. So one finds cases in which the judge, while finding for the plaintiff. expresses his bitter regret that he is unable to find for the defendant, as the justice of the case requires, but he points out that that is the law and he has to apply the law.
About eighteen months ago I was co-editor of a book optimistically called 1145 Law Reform Now. This book was a collection of things which are wrong with English law—and every English lawyer knows how full of anomalies and injustices our law is. The book contained some things which are matters of opinion, but the bulk of it consisted of anomalies in our law which every lawyer would have agreed were anomalies. Large sections of the law were not covered by the book, but this was simply because we found it quite impossible to put into one book everything that was wrong with. English law. The Bar Council have recently sent me some eighty different points in connection with law reform which they say badly need looking into.
If that is the state of our Statute Law and the stale of the Common Law, the conjunction of the two is not any happier. Some of us think that if you treat young people responsibly, they are perhaps more likely to act responsibly than if you do not. Under our judge-made law, when a young man came of age depended upon his social class. The peasant's son came of age at 13; the merchant's son when he was of an age to count pence and measure cloth. It was only the knight's son who did not come of age until he was 21. The general tendency of our law being to assimilate the law to that of the upper classes, it became in the Middle Ages 21 for everybody. That having been once decided, nobody could alter it. Nobody has ever thought about it since.
In the last hundred years the age of puberty has fallen by six months every ten years: a hundred years ago it was 17; it is now 13, and becoming 12. This, one might think, might make a difference in relation to the age of marriage. But once the law is fixed, the judges can do nothing to alter it. Under our law no infant can enter into an enforceable contract unless a judge thinks that it is necessary for him to do so. So to-day a man of 20 with a wife and two children, who may be earning a good living, is treated in law exactly the same as if he were a child of 9. He cannot own property. It is no good his applying to a building society for a loan, because he is incapable of owning property. On this situation Parliament has superimposed all sorts of exceptions as to what people can do. You can drive a motor 1146 cycle at an earlier age; you can fly a glider at 17; you can be a pilot in sole charge of an aircraft at 18. But you cannot enter into an enforceable contract to take flying lessons until you are 21, because that is the Common Law.
That being the state of the law, one might well ask: how has it got into this situation? The reason is simply this. It may be your Lordships' experience that things in life do not get done unless it is somebody's job to do them. It has never been anybody's job in England, who could do it, to see that our law is in good working order and kept up to date. I suppose that we were one of the last countries in Europe to have a Department of Law at all. Thus it was left to Government Departments to do little bits of law reform on their own. Until 1885, the Lord Chancellor had a couple of secretaries whom he employed himself and who left office when he left office, having first torn up all their papers. It was not until well into this century that there was any sort of Department of Law. It is still to some extent done by Government Depart?ments⤄for instance, the Board of Trade take an interest in the sale of goods. But the sale of goods is only part of the law of contract, and it is nobody's business to see how the law of contract is developing as a whole.
The Home office has acquired (I think because nobody else did it) a duty to keep our criminal law in order. It is said that the Lord Chancellor is responsible for the civil law. This is one of those things which is difficult to work out in practice, when it comes to criminal procedure, and so on; and no one quite knows what the dividing line is. I think it was Professor Keaton who observed that somewhere between the Lord Chancellor's Office and the Home Office was a large hole where projects for reform of the criminal law were deeply interred. I remember at one time writing to the then Lord Chancellor pointing out ar. error which I thought I had found in a law. He wrote back and told me to write to the Home Secretary. I wrote to the Home Secretary, and he then wrote back and said that it was nothing to do with him but was a matter for the Lord Chancellor.
So far as the Home Office is responsible for the criminal law this has recently been considered by the Estimates 1147 Committee of another place. of course, as soon as they looked at the criminal law they were absolutely horrified, because they said (this was in 1963): "Surely, in 1963 this cannot really be the criminal law. Look at all these Acts." They said, "Here, for example, there in this Act":for as much as the horrid, impious and execrable vices of profane cursing and swearing so highly displeasing to Almighty God and loathsome and offensive to every Christian are becoming so frequent and notorious that unless speedily and effectually punished they may justly provoke the Divine vengeance to increase the many calamities these nations now labour under.Then the Act provides for large pecuniary penalties against people swearing in public:Everyday labourer, common soldier, common sailor and common seaman 1s., and every other person under the degree of a gentleman 2s., and every person of or above the degree of a gentleman 5s. Constables to seize persons profanely swearing if unknown and bring them before the next justice who is to convict them on the officers' oath …—and so on.Constables not doing their duty …—and so on. Then the penalties are to go for the benefit of the poor of the parish in which the offence was committed.
The Committee said, "Surely, this cannot be the law to-day. Here are all these old Acts. You do not seem to have reformed the criminal law very well." In the Home Office there is what is known as the "C.I. Division of the Criminal and Probation Department," which is apparently responsible for the reform of our criminal law. But, of course, in fairness to the Home Office, it must be pointed out that they are responsible for the prisons; for penal reform; for after-care; for the whole of the Children's Department (which is part of the Home Office); for aliens; for immigration; for white fish; for fire brigades. It seems that they are expected to do everything.
The Estimates Committee had been told by the Home office that if, in this Division which is responsible for the reform of the Criminal Law, there was any lawyer, he was there by accident, not by design. The Committee said in their Report: 1148C.I. Division of the Criminal and Probation Department has the main responsibility for bringing the criminal law up to date. It was frankly admitted by the Assistant Under-Secretary of State, when asked about the antiquity of some of the laws still in force. that 'there is a tremendous backlog of that sort of legislation. We must just get on with it as we can and when we can'. In your Committee's opinion the Home Office has not been successful in this aim and the backlog of legislation in urgent need of revision is in their view serious.We have, of course, a Criminal Law Revision Committee, and the Estimates Committee thought well of that. But they said,So far, the Committee"—that is the Criminal Law Revision Committee—have produced one or two small but useful Acts such as the Suicide Act, 1961, and are now engaged on the major task of examining the law of larceny. The members of the Criminal Law Revision Committee are, however, busy men with numerous other commitments which must prevent them giving a great deal of time to the work of the Committee. In your Committee's opinion the existing arrangements for revising the criminal law are inadequate.Then the Committee touched on this division of responsibilities, and they said that they:feel that the present division of responsibilities may cause difficulties in the administration of the law, as well as in the reform of the criminal law to which they have already referred.They recommended that the Home Office and the Treasury, in consultation with the Lord Chancellor's Office, should take immediate steps to reorganise the present division of responsibilities between those Departments concerned with the administration of the criminal law, with a view to rationalising its administration and rendering more effective the methods of bringing the criminal law up to date. Nothing has been done. In the civil law it is perhaps the Lord Chancellor who is—
§ VISCOUNT DILHORNE
My Lords, did the noble and learned Lord say that nothing had been done in the light of the Report?
§ THE LORD CHANCELLOR
Yes, my Lords. Some discussion took place. No action has been taken. It is, I suppose, the Lord Chancellor who is otherwise mainly responsible for the state of our law, and therefore it may be said, and I have heard it said, that the state of our 1149 law is the fault of successive Lord Chancellors. I do not think that this is fair at all. After all, in the mornings the Lord Chancellor is a politician, and he has to attend Cabinet meetings and meetings of innumerable Cabinet committees and Ministerial committees on which he gets stuck. He has his correspondence to dictate, he has people to see. Naturally, periodically, he has to keep in touch with the Lord Chief Justice, the Master of the Rolls and the President of the Probate, Divorce and Admiralty Division as to the working of the courts.
In the afternoons, as your Lordships know, he is the Speaker of your Lordships' House. Even then it is sometimes impossible to avoid a Ministerial committee in the afternoon. On the occasions on which I have to leave the Woolsack your Lordships may think I am going to have a drink at the bar. This would perhaps be excusable, because while your Lordships' Chamber has many amenities, oxygen does not seem to be one of them; and without wanting to reform everything, perhaps that is a reform which we may make at some time. But yesterday, for example, I had, I am afraid, to miss quite a large part of the very interesting debate on agriculture. This was because I had first to see a judge about a particular matter. Then I had to see the Lord Chief Justice of Northern Ireland. Then I had to see the Commonwealth Secretary on an urgent matter, and then the Colonial Secretary, who is going abroad to-day, had to see me about another matter before he goes.
Therefore it is not surprising that the first rule in my Department is never to do anything by day which can possibly be done at night; and it is at night that the departmental work gets done. I suppose any Lord Chancellor would agree that his most important function is in relation to appointments, because he has to appoint all the High Court Judges, all the county court judges, all the Queen's Counsel, all recorders, chairmen and deputy chairmen of quarter sessions, and about 16,000 magistrates, in which he has the assistance of advisory committees. Any lawyer would agree that, however good your law is, if the judge is wrong everything is wrong. This is why you must take considerable trouble as to which of six men would really be the best man to be a deputy chairman of 1150 a quarter sessions in Carmarthen or wherever it may be.
Then one has letters from Members of Parliament or their constituents who have some complaint to make against the law, and all of those have to be investigated and replied to. One has, of course, to read one's papers, not only for Cabinet meetings, as does any other Cabinet Minister, but also for committee meetings. One has to pay attention to the affairs of the Bar and of solicitors. Now that your Lordships' House meets earlier, it is no longer really practicable for the Lord Chancellor to sit judicially very often, though I did sit for about a week in the Privy Council before your Lordships assembled in January. In any case, I am, of course, responsible for the arrangement of the list in the House of Lords and in the Privy Council.
Furthermore, the Lord Chancellor is responsible for the administration of the Law Courts in the Strand. The salaries and wages bill of the people working in it. apart from the Judges, comes to over £500,000 a year, so there is obviously a task of administration. He is responsible for the Public Trustee, who has about 500 employees. If anything goes wrong with the Public Trustee it is the Lord Chancellor's fault. There are some thousands of employees in the Land Registry, for which he is also responsible, and I am following my predecessor in trying to expedite the enlargement of the Land Registry as much as possible, because the transfer of registered land is so much cheaper than the transfer of unregistered land.
He is also responsible for legal aid. Then there is the Public Record Office in Chancery Lane. If any of your Lordships have never been there, I may inform you that it is a unique collection of our national records. It is to the Record Office that everything goes from Government Departments, and there is the very difficult task of deciding what to keep and what to destroy. You find there, for example, the Domesday Book, Magna Carta and, I think, two of the only verified signatures of William Shakespeare, one being on his will. It is a unique collection.
Moreover, the Lord Chancellor is responsible for the administration of the county courts, with registrars, clerks and 1151 so on, and a staff of about 5,400, and he is responsible for them all over the country. He has about five times as much ecclesiastical jurisdiction and patronage as the Archbishops of Canterbury and York put together, and he is always having to appoint clergy to livings, with, of course, the assistance of the Bishop and a special staff. Obviously, it is of equal importance that the right man should go to the right place, that he should know where he is going to, and that the churchwardens should know.
Then, some idiot—I should not say that; I must withdraw that, because it was Parliament—Parliament thought fit, a long time ago, to pass an Act, one section of which provided that the manager of every lunatic asylum must forward to the Lord Chancellor, unopened, any letter written by a lunatic. Of course, they all wrote to him; and although that position has been slightly ameliorated by subsequent legislation, it is still much the same.
My Lords, this is the man who, in his spare time, is supposed to be thinking about every aspect of English law, seeing whether or not it is working properly, and, if it is not, suggesting what ought to be done about it. Of course, he cannot. Nor can the very small staff that he has, who are taking work home every night and at weekends and are working flat out, with no overtime. Nobody but civil servants would stand for it—and I have acquired the highest possible admiration for civil servants. So for a long time the principle on which we have acted is that you do not do anything about law reform unless somebody has made a fuss. If there is a pressure group or if the Daily Express digs something up about it, then the Lord Chancellor says, "Oh, dear! I suppose we must do something about this." But otherwise you do nothing.
Of course, the state of the law as a whole affects a great many people. May I take just one example? If a married man goes off with another woman, leaving his wife and children and a house, if the wife is not working it is of course important for her to be able to go to the local court to get an immediate order for payment of maintenance. So she can: but the maximum amount which she used 1152 to be able to get was £2 a week. This, for all I know, may have been a very proper figure to fix 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 between 1896 and 1914, no change was made. Then, of course, during the 1914–18 War there was a big drop in the value of money, but again nothing happened. There was a further fall in the value of money between 1918 and 1939, but still no change was made; and the same was true of the period between 1939 and 1945. It was only when some Labour lawyers pointed this out to the Labour Government in 1945 that it was changed. The reason was that there was no pressure group; there is no league of deserted wives, and the Daily Express did not say anything about it, so nothing happened at all. My Lords, our law will never be put into a proper state unless and until there is a body of men whose sole duty it is to submit the whole of our law to a systematic and continuous review—and that is the object of this Bill.
This Bill obtained an unopposed Second Reading in another place, but I know that there are objectors. The only three objections, I think, are these. First, some of your Lordships may remember that we had a short debate about this subject a year ago, and that the noble and learned Viscount, Lord Dilhorne, said that everything was all right because we had the Law Reform Committee and they would do it all. I have already told your Lordships the view of the Estimates Committee of another place as to the way in which our criminal law needs reform, in spite of the admirable work done by the Criminal Law Revision Committee. But that Committee, of course, suffers from the same defect as does the Lord Chancellor's Law Reform Committee. I was a member of the Law Reform Committee for eleven years, so I know a little about it. It consists of judges. barristers, solicitors and academic lawyers meeting together for about an hour and a half, at the end of a long day's work, about once every three months. We would have one particular point submitted to us by the Lord Chancellor, and after a year, or sometimes two years, we would produce what 1153 I would hope and believe was a very valuable report—and most of the reports were sooner or later carried into law. But this is just scratching the surface. You cannot reform the law of England in your spare time on an occasional afternoon.
Then, the second objection taken—and this also was much stressed by the noble and learned Viscount—was that it is all a question of Parliamentary time. It was said that it was no good labouring away to work out some desirable law reform if the Parliamentary time could not be found to enact it. There is something in this point, but not much. Just as any man of common sense would, in the first place, take all our Statutes dealing with a particular subject and put them all into one Act, called a Consolidation Act, you can if you like (and I think you should for some subjects) incorporate all the existing Case Law, so that you have the entire law as it is to-day in writing and in one Act; and, of course, so far as consolidation is concerned, ever since Lord Jowitt's Act it takes up no Parliamentary time at all.
I remember taking one example last year, because I was once a member of a committee, presided over by the noble and learned Lord, Lord Evershed, appointed to consider the reform of our practice and procedure in the Supreme Court, and to see whether the cost of litigation could not be reduced. In their report they said that they thought that one of the things which caused trouble was our necessarily complicated law of evidence, because, as they pointed out in their report, our law of evidence is to he found in over forty different Acts of Parliament covering a period of 329 years from 1609 to 1938; and I may say that, in addition to that, there are 6,492 reported cases on the law of evidence. This committee unanimously recommended that the whole law on this subject ought to be codified, and certainly that a codification of the numerous statutory provisions ought to be made.
So, last year, as this report was made in July, 1953, and the relevant debate took place in, I believe, June, 1964, I asked the noble and learned Viscount, Lord Dilhorne, how he was getting on with implementation of the report. it was, I think, the only question I asked 1154 him, but in the course of a fairly long reply the noble and learned Viscount ducked that and did not answer the question. I know now, of course, why —namely, in eleven years nothing at all had been done about it. Immediately after the debate he referred it to the Law Reform Committee; but that was after a period of eleven years and because his elbow had been jogged about it. One does of course need—
§ VISCOUNT DILHORNE
My Lords, I think the noble and learned Lord has been wanting me to rise, but I would assure him that it was not his question that led to that reference. What happened in the previous eleven years I am afraid I cannot answer for from recollection. But I should be grateful if the noble Lord would tell us something about the Bill.
§ THE LORD CHANCELLOR
My Lords, I have explained, first of all, the need for the Bill, and the objections that can be made to it; and I am certainly coming to the clauses of the Bill. There is something in this question of Parliamentary time. This is not a question which arises here, because usually we do not sit on Mondays and Fridays: it arises in another place. But if there is a will for law reform, Parliamentary time can be found; and the Procedure Committee in another place is at this time specifically considering what alterations should be made in the procedure of another place in order to get through a substantial number of law reform Bills. I believe that the appointment of a Law Commission will itself be a considerable impetus to law reform passing through Parliament.
Lastly, of course, there is always general opposition by lawyers to any reform of the law. If one looks at the history of law reform, this is quite astonishing, really, because of the extraordinary reasons given for that opposition. At a time when those charged with felony could not be represented by counsel the proposal that they should be was opposed because it was said that it would be unfair to learned counsel to expect them to appear for such people. Then, in the long battle to get a Court of Criminal Appeal, every sort of argument was used. It was said that everybody would appeal as a matter of course; that you would have to have 1155 at least three courts working day and night throughout the year; that the costs would be astronomical, and that juries would convict lightheartedly because they would say, "If we are wrong, the Court of Criminal Appeal can always put us right".
The matter was summed up two or three years ago by that very distinguished Judge, the late Mr. Justice Frankfurter of the United States Supreme Court, when he was in this country. He said:Nothing is more true of my profession than that the most eminent among them for 100 years have testified with complete confidence that something is impossible which, once it is introduced, is found to be very easy of administration. The history of legal procedure is the history of rejection of reasonable and civilised standards in the administration of the law by most eminent judges and leading practitioners. That is true of your country and mine. That is true of civil and criminal law. The reason is a very simple one and was given by one of the great lawyers of my country. He said, in effect, Of course we oppose reform. We grew up under the old system; and look at us as proof of its efficiency.'Consider the whole history of civil procedure, consider the whole business of common law pleading. Look at everything that happened in this country prior to 1873. Every effort to effect improving changes is resisted on the assumption that man's ultimate wisdom is to be found in the legal system as at the date at which you try to make a change.Here, in the movement started by Lord Brougham, ultimately the whole of our pleading and practice was changed, and there were completely new rules and a new system of legal procedure in 1883. The Bar Council (as it then was, the Bar Committee) marched to the bar of another place to protest against rules that they said would never work and were quite impracticable; and they said that it they did work then all lawyers would be ruined. In fact, they worked extremely well and, so far as I know, the lawyers are not ruined yet.
There is, however, a change to-day. This Bill has been generally welcomed by lawyers as a whole. Lawyers themselves hear people saying, and they say themselves to the industrialists and the business men, "Come along; you are not sufficiently efficient. We are on the threshold of a scientific revolution and we must pull our socks up. We must all be more efficient." Shall not the law be expected to display that degree of 1156 efficiency that we expect in any other walk of public life? To-day lawyers feel this. They know our law as it is not efficient; and although there are always one or two elderly gentlemen who oppose things, I observed, in another place, that all the young lawyers, whether they be Labour, Liberal or Conservative, all strongly supported this Bill. I have been surprised at the number of letters I have had from Conservatve lawyers—because most lawyers are Conservative—saying: I do not agree with your politics; but if I could help in any way about the Law Commission I should like to do so." And some of them add: "I do not mind whether it is full-time or part-time or whether it is paid or unpaid."
It is for these reasons that the Government have put forward this Bill for the appointment of two Law Commissions. The Bill, as your Lordships will see, is a simple one. Clause 1 constitutes the Commission—this is the English Commission. Clause 2 provides for the constitution of a similar Commission for Scotland. I had thought that perhaps it might be wise to start with England; but Scotsmen know a good thing when they see one and they were not going to be left out. Clause 3 sets out the functions of the Commission:It shall be the duty of each of the Commissions to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law,Then it sets out that for that purpose they should:receive and consider any proposals for the reform of the law which may be made or referred to them;Judges, as I have said, frequently point out that some law which it is their duty to administer is one which, owing perhaps to changing economic and social conditions, no longer does justice but does injustice. The Commission will no doubt also read articles written by academic lawyers in the legal journals, because the academic lawyers are often those who see our law from further away than the practioner does, and they best see in what direction it is developing.
1157 Then the Commission shall:prepare and submit to the Minister from time to time programmes for the examination of different branches of the law with a view to reform, including recommendations as to the agency (whether the Commission or another body) by which any such examination should be carried out;That is to say that, in effect, they are to draw up a five-year programme and submit it to the Government. The Government maintain control at that stage, because it may be that there is a Department which is just completing a reform of the law on some particular point which, obviously, it would not be desirable for the Commission to undertake. Then, their programme having been approved, the Commission formulate proposals "by means of draft Bills or otherwise" and they canprovide assistance to Government Departments and at the request of the Minister, to other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law".It may be that a Government Department is concerned with a particular law and may want to know what are the comparable laws in other countries. The Commission will be able to assist with that. Indeed, as paragraph (f) says, it is their duty:To obtain such information as to the legal systems of other countries as appears to the Commissioners likely to facilitate the performance of any of their functions.We English lawyers, I am afraid, have been too insular for far too long. After all, other countries have the same sort of problems as we have. Other countries have a housing shortage, for example. It is, in general, useful to know what the laws of other countries are. Your Lordships may have seen in another place a Bill, which I believe has been introduced or has had its First Reading, to abolish the Tribunals and Inquiries Act, the Act under which tribunals like the Vassall Tribunal are appointed, a procedure which has, rightly or wrongly, given rise to a great deal of criticism. I was considering this when I happened to get a letter from a member of the Bar, a magistrate who has been talking to magistrates in India. Quite by chance, he happened to send me the constitution of the Indian Law Commission (they have had one for some years) and their latest report is upon the working of the Indian Tribunal and Inquiry Act, which they borrowed from 1158 us though not in the same form. It is an example of the fact that, particularly in the Commonwealth, it is very useful to know what is going on in other countries.
The clause provides thatThe Minister shall lay before Parliament any programmes prepared by the Commission and approved by him and any proposals for reform".In addition, the Commissioners are to make an annual report to Parliament over the heads of the Government, and over the heads of the Government Departments, explaining what they have been doing and how they see their future work. The remaining clauses relate to remuneration and pensions of the Commissioners and their staff.
If there are any particular points which any noble Lord has in mind, I shall be able to answer them. The state of our law is, I think, of great importance to our people. I regard this as one of the most important, exciting things which this Government have done, and I look forward to the day when, with the help of the Law Commissions, our law may better serve the needs of our people. I beg to move.
§ Moved, That the Bill be now read 2a. —(Lord Gardiner.)
§ 3.59 p.m.
§ VISCOUNT DILHORNE
My Lords, the noble and learned Lord the Lord Chancellor concluded his speech with the observation, with which I am sure all of us agree, that the state of our law is of the greatest importance to our people. By "our people" I mean, of course, the people of this country; and I think the noble and learned Lord recognises that in fact, whatever be the state of our law, a great deal of our law emanates from Parliament, and Parliament itself is responsible for it.
The noble and learned Lord is well known to be an enthusiast for law reform, and I am sure that it gave him great pleasure to move the Second Reading of this Bill to-day. I am sorry that, while drawing attention to the defects in the existing situation, he did not think fit to pay some tribute, not to me—because I do not require it—but to his predecessors in office, who have done what they could in their time of office to secure reform of the law where reform was needed. I was sorry not to hear 1159 any acknowledgment from the noble and learned Lord of the work that had been done.
A great many Consolidation Acts have been passed, and are passed every single Session. A great many of what might be called strictly law reform Bills were passed in the time of the late Government and in the time of its predecessor. But I shall not weary your Lordships by reading out a list of those measures. I think that it is true to say that every Lord Chancellor is keen on law reform. I can speak only for myself, but I am sure that this is true of all Lord Chancellors. Up to now—and, indeed, now—every Lord Chancellor has had to face the problem of getting law reform measures through Parliament when so many of his political colleagues are competing for legislative time for Bills of, it may be, greater political content and of, it may be, greater social vaule.
Every Lord Chancellor has had to face the fact that only a limited number of law reform Bills could be enacted in each Session. That is the fact to-day, and it is really no use the noble and learned Lord the Lord Chancellor, in drawing attention to the statements I made in our debate in 1964 on this point, saying, rather patronisingly, that "there is something in that". At the present time, there is a great deal in that. The theme of my speech in June, 1964, was to stress the need, if one could secure a way, for making provision for dealing with such Bills. But one does not really destroy a bottleneck by ignoring its existence—I must not use that word "bottleneck" too often, because I know that it annoys my noble and learned friend Lord Conesford.
§ VISCOUNT DILHORNE
I thought it annoyed my noble and learned friend. There has been this bottleneck in this whole procedure. I think that all Lord Chancellors have recognised that it was useless and a waste of busy people's time to ask them to undertake the preparatory work for law reform if there was no prospect of getting the end product on to the Statute Book.
The Bill which we are considering to-day does not, of course, touch upon that problem. I hope that it will be 1160 resolved satisfactorily. The result of this Bill may be the production of more Law Reform Bills, but it does not follow that it will be any easier, in this or in future Parliaments, to get them enacted than it has proved to be in the past. Much will depend on the content of the Bills produced. If they have a political content, their passage is likely to be more difficult and more controversial than if they dealt with what can conveniently be called lawyer's law.
The Lord Chancellor spent a great deal of his time in making an amusing speech about the need for law reform, in the course of which he drew attention to the book, of which he is part author, called Law Reform Now. He said that it drew attention to things which were wrong with the law. I have read that book with interest, but I believe that one would find a considerable division of opinion about many matters mentioned in that book. There are assumptions of what is wrong with our law which would not be generally admitted, and statements of things which are wrong with our law which have a high political content—for instance, the matter of leasehold enfranchisement, on which there has been controversy whenever it has been discussed.
That is why I think it most important that we should know quite clearly what is the sphere in which these Commissioners will operate. Much will depend on this. Should they be a Left-Wing body or have a Left-Wing bias and use their powers for the promulgation of Left-Wing ideas, then the process of enactment is likely to be slow and to give rise to much controversy. I should like an assurance from the noble and learned Lord that, in selecting the cornmissioners, he will take great care to see that they are free from bias, on one side or the other. Also, I should like an assurance that their task will be confined to dealing with what is normally called lawyers' law. Because if it is not so confined, it may well be that they will be impinging upon policy and, indeed, upon the province of Parliament.
May I say just a word or two with regard to the existing machinery in relation to law reform, which was the subject of some comment from the noble Lord? It is flexible, and it could be greatly expanded without any difficulty.
1161 Up till now, those committees (which I understand are to continue) have dealt with, and dealt solely with, lawyers' law. I hope that they will continue to do so.
While I recognise the need for law reform, and should welcome more of it, I do not share the view held and expressed to-day, and on previous occasions, by the noble and learned Lord the Lord Chancellor, as to the present state of the English law. I cannot profess to speak of the Scottish law: others, I hope, will do so. But I think, despite what the noble and learned Lord has said, that we have just cause to be proud of both English and Scottish law, and it does no service to seek to denigrate either.
We debated this subject as long ago as June 11, 1964. Then the noble and learned Lord said that he thought our law wasin a state in which it can no longer be allowed to remain."—[OFFICIAL REPORT, Vol. 258, col. 1080, June 11, 1964.]He based his condemnation on that occasion much on the same grounds as he did to-day—indeed, passages of his speech were extraordinarily similar. But while I recognise the need for law reform—and I want to emphasise that—I do not go so far as the noble and learned Lord in his wholesale condemnation of our present law.
On what does he base that condemnation? Of course, one can pick out and find in the Statute Book an old piece of dead wood, which is seldom used and referred to, and have a great deal of fun with that—with maintenance and matters of that sort. Of course, one can point out how long it took to secure the consolidation of the Marriage Acts. But has it not to be recognised that in a complex society such as ours it is in, evitable that we should have a large number of Statutes in force and that, so long as Parliamentary government goes on, their number will be added to every year by Parliament. To draw attention to the large number of Acts passed by Parliament over the years on one particular subject, like the Marriage Acts, is only drawing attention to the fact that Parliament itself has paid attention to that problem. Does it really add very much for the noble Lord to say to-day, as he did on June 11, that there are 4,000 Statutes in force, and if you took down 1162 those volumes of the Statutes still in force you would take down some 358 volumes (that is what he said on June 11; he has now corrected it to 359 different volumes), and to draw attention to the fact, as he did to-day, that there are 99 volumes of delegated legislation and 350,000 reported cases?
Little was said by the noble Lord about the machinery which has been in existence now for many years for Statute Law revision and for consolidation. I am not saying, for one moment, that there is not still a great deal of dead wood that can be excised and a great deal of consolidation that can be done. It can be done, and should be done. But what you want for that work is not just a number of Law Commissioners, but skilled Parliamentary draftsmen who can devote their whole time to the work. I shall have a word or two more to say about Parliamentary draftsmen.
In the past, the main burden of the work, both of cutting out the dead wood and of consolidation, has fallen on Parliamentary draftsmen, and, despite the appointment of Law Commissioners envisaged by this Bill, I believe it will continue to do so. It is work that has to be done with extreme care; it cannot be hurriedly done. We had an instance the other day when we had to make an Amendment to a Consolidation Bill as a result of a slip. It was, so far as I can recollect, a unique occasion. What the noble Lord has not explained is how the appointment of Law Commissioners will accelerate the work of consolidation or of Statute Law revision. What will accelerate it, and would accelerate it without the appointment of Law Commissioners, is the finding of more Parliamentary Counsel. Lawyers with the very special skill required are not easily found and recruited; and when they are recruited, they have to undergo a period of very special training.
It is all very well for the Minister without Portfolio to say in another place that the noble Lord and he had no qualms about being able to get the Parliamentary Counsel required. I must say that I have considerable doubts, particularly if Parliamentary Counsel have to give priority to the legislation for the Session, as no doubt they will have to do. Therefore, so far as Statute Law is concerned, Statute Law revision and consolidation are the 1163 two processes required, and neither requires the appointment of Law Commissioners. And the whole state of our law should not be condemned because these processes have not been completed.
What about the 99 volumes of delegated legislation? It is all very well for the noble Lord to refer to them, but how are they to be dealt with? They have been used in argument on more than one occasion to make out the case put forward by the Lord Chancellor. But how are the Law Commissioners to deal with this delegated legislation? There is not a word about that in the White Paper. Is the flow of delegated legislation likely to be reduced? When one looks at the Bills introduced this Session, I should think the contrary is likely to be the case. I do not know whether any thought has been given to this. Are the Law Commissioners going to supervise the making of delegated legislation? Will the Ministries in future be required to submit to them for their approval the Statutory Instruments they intend to make? Or is this creation of Law Commissioners going to have no impact on the 99 volumes of delegated legislation to which the noble Lord has so frequently referred? I know that the noble Lord does not like my asking questions. He has complained of that before. But, my Lords, one of the purposes of debate is to find out how a Bill is intended to work. It is for that reason that I ask these questions, and I hope that I shall receive answers to them.
What is the significance of saying that there are 350,000 reported cases? Is it suggested that some steps should have been taken to prevent them from being reported? I think that a great many lawyers would have been glad if many cases in the Law Reports had not been reported, because they do not help very much. But it does not mean to say that the state of our law deserves wholesale condemnation because people have thought it right to report a large number of cases. The noble Lord last Monday took an opportunity of referring to this subject in a debate on Housing, and this is what he saidAnother fact is drawn to out attention by this Report—namely, the awful state of our housing and landlord and tenant law. I do not think it is so much worse than most of 1164 our law, but, on the whole, I think it is one of the worst examples. If the intelligent, educated layman wants to know what is our housing and landlord and tenant law, he has first of all to read 54 different Acts of Parliament extending over some hundreds of years. Then, when he has read and mastered the 54 Acts of Parliament, he has a large number of Statutory Rules and Orders to master. And, provided he has done all that, he is left with the 8,041 reported cases which have devoted themselves to the true construction of the 54 different Acts of Parliament."—[col. 873, March 29, 1965.]That sounds amusing, and no doubt it was meant to be amusing and entertaining. But no intelligent, educated layman would ever dream of doing what the noble Lord suggested. What he would do would be to get hold of one of the many reliable textbooks that are available on the subject—and there really is nothing like the difficulty the noble Lord suggests in finding out what the law is, except, of course, in cases like the Burmah Oil case. I do not know how many words there are, but if you looked at a good English dictionary, I am sure you would find, in the tens of thousands of words it contains, that there are many that are obsolete and many seldom used, and only a small proportion are in general use. It seems to me it might just as well be argued from this that the whole of the English language is in a sorry state.
The Lord Chancellor spent a great deal of his time in making out a case for reform of the law, and I make no apology for having spent some time on this subject myself. I think that in his enthusiasm for this subject he has painted a wholly exaggerated picture of the state of our law, and that is what I want to rebut. And, in particular, I should like to rebut the assertion that after the Report of the Estimates Committee in 1963, to which the noble Lord referred, nothing was done. My recollection is—and I think a good deal was said about it in another place—that, in fact, action was taken. Nor do I accept for one moment that the noble Lord was right in saying that the principle of law on which we have acted is not to have anything done about it unless someone makes a fuss. So far as I am concerned, and, I am sure, so far as my predecessors in office are concerned, that is a gross misrepresentation of the case.
I hope that nothing I have said will be thought to imply that I do not recognise 1165 a real need for more law reform, for more consolidation of Statutes and for more cutting out of dead wood. The question we have to consider on the Second Reading of this Bill is one which was not really dealt with at all by the noble and learned Lord, and it is this. Does this Bill provide the right machinery for bring that about? I should not be frank with the House if I did not express some doubt as to whether it does. But because I have some criticisms to make of the Bill, I hope it will not be thought, or represented, that I am against law reform, for that is not the case.
There are to be under this Bill not more than five Law Commissioners for England and Wales. I hope that the number will never be fewer than five. I think there always should be five, if we are to have Law Commissioners at all, because even then they will be a much smaller body than either of the Law Reform Committees, and they will be charged with a review of all the law of England and Wales. The noble and learned Lord, the Lord Chancellor, drew attention to the duties they are to fulfil. They are set out in Clause 3. They are to review, first of all,…all the law … with a view to its systematic development and reform …".I am not quite sure that I understand what is meant by the words, "systematic development". But if they are going to review all the law, that must mean that they are to review all the law, including the law which is highly charged with political content. I ask the noble and learned Lord to say this: is it the intention that the Law Commissioners should tackle that? Or is such law with high political content to be left to the Government Departments which are responsible in that particular field? Are the Law Commissioners to concern themselves with policy? The wording of the clause seems to make it possible for them to do so. Is that the intention?
If we are going to appoint Commissioners, it really is very important for us to know clearly and with precision exactly what their duties will be. I would hope that, despite the breadth of language in this clause, the noble and learned Lord will say quite emphatically that the intention is that they should 1166 deal with what has been called lawyers' law. Sometimes it may not be easy to draw a line between lawyers' law and law with political content. I should be content if I were told that, although they might occasionally go over, or perhaps just over, the border, their intention would be to deal with lawyers' law. If it is not, if they are to deal with all the law of whatever kind it is, whatever the political content, then I must say that their relationship with your Lordships' House and with Parliament may require some consideration. They are to take over, under their special consideration, the repeal of obsolete and unnecessary enactments, and reduction of the number of separate enactments. That is work which is going on now. What is to happen to the existing committees and the existing procedure which has to be followed in relation to consolidation? It seems to me that there may be some duplication here which will not facilitate the process of consolidation or Statute Law revision.
Then the Law Commissioners areto receive and consider any proposals for the reform of the law which may be made or referred to them".Anyone can make proposals to them. I see no objection to that, though I should not have thought it necessary to make statutory provision for it. But they are placed under a statutory duty to consider all the proposals they receive. I cannot think that this is right. Many of the proposals they receive may not merit serious consideration at all, and yet this high-powered body are to be under a statutory duty to consider them. Surely, they should be obliged to consider only all proposals which of their nature merit serious consideration. I may be told that this is the intention. It is not what the Bill says, and now we are told that Bills will in future be more explicit.
Then they are to prepare programmes for the Lord Chancellor, and say who they recommend should do the work. I do not think that this will be a very onerous task, and it is hardly necessary to appoint Law Commissioners to do this. There are many in the Lord Chancellor's Office who could prepare such a programme for his consideration. To what extent the Law Commissioners will themselves engage in examining the law for the purpose of reforming it is by 1167 no means clear. They are only a small body, but if they do the work themselves they are to prepare draft Bills; they are to undertake, as I have said, Statute Law revision and consolidation, and prepare draft Bills. Are Parliamentary Counsel to be employed on this, or are we going to have two different types of Bills, one produced by Parliamentary Counsel and the other by the Law Commissioners?
I want to ask your Lordships to consider Clause 3(1)(e). The noble and learned Lord said nothing about it. It places on the Law Commissioners the duty to provide assistance to Government Departments and, at the request of the Lord Chancellor, to anyone else. Now what kind of assistance is contemplated? It may be that on occasions Government Departments will want to seek the advice of the Law Commission. I do not think there is any objection to advice being given by the Law Commission, although the Law Officers are the proper people to advise Government Departments—and an interesting situation may arise if the advice of the Law Officers conflicts with that of the Law Commissioners. I want to know what is meant by "to provide assistance". It must mean more than giving advice, or that would have been the word used. The Law Commission will, I presume, form part of the public service. The Commissioners will not be civil servants. What kind of assistance is it contemplated they should be under a duty to give?
Provision is made in this Bill for the office of Law Commissioner to be held by a holder of high judicial office. To place the holder of high judicial office under a duty to assist Government Departments might be regarded as interfering with the independence of the Judiciary. The noble and learned Lord may not recollect the words of his leader when Leader of the Opposition. Mr. Wilson, the Prime Minister, attacked the then Prime Minister and said this:He"—that is, Mr. Macmillan—does not have the regard which his office demands for that rigid distinction between the executive Government and the independent Judiciary which is the foundation of British liberties.At that time that was an unjustified accusation. But it seems to me that put 1168 ting a judge, the holder of high judicial office, in this position on this Commission, and imposing on him a statutory duty to give assistance to Government Departments, may indeed be a departure from their rigid distinction to which the Prime Minister then referred.
Who are to be these other bodies to whom the Law Commissioners are to provide assistance at the request of the Minister? As the Bill now stands, I do not know whether it is the intention or not, but if the Lord Chancellor says so, they will be under a duty to give assistance to the Society of Labour Lawyers, or any outside body. I must say that I cannot think that that is right. We shall require to consider this more closely on the Committee stage, but it might save time if the Lord Chancellor dealt with it to-day.
I have dealt first with the duties which it is sought to place on the Commissioners, because I think that when one has considered those duties one can then turn to the question: who should they be? The Lord Chancellor is to select them. They must be persons who appear to himto be suitably qualified by the holding of judicial office or by experience as a barrister or solicitor or as a teacher of law in a university.Although provision is made for a Commissioner to be the holder of high judicial office, the Lord Chancellor does not commit himself to select one. He can choose the holder of any judicial office. He can, if he likes, have just one practising lawyer, and the rest may be academic lawyers. I do not doubt that he would like to have a free hand in recruiting Commissioners; but, my Lords, I hope he will agree that if this Commission is to fulfil the very high hopes he has of it, it is essential that the Commissioners should be of the highest distinction in the law.
I hope that he will be able to tell us that he proposes to invite the holder of high judicial office to be Chairman. Does he propose to invite the holder of any other judicial office? Might we be told? I hope, too, that the noble Lord will agree that it is essential that lawyers with recent practical experience should he well represented on the Commission. I have nothing against academic lawyers, but it would be a mistake to have a 1169 preponderance of academic lawyers, and I do ask the Lord Chancellor what balance he proposes to try to obtain on this Commission. If, as I hope, the Chairman is to be the holder of high judicial office, I think that at least two of the other four Commissioners should be lawyers with recent practical experience. I have emphasised that they should have high distinction in the law. While I am all in favour of lawyers' taking an active part in politics, it would, in my view, be a great mistake to appoint, for instance, a teacher of law in a university more distinguished for his political views and activities, be they Left or be they Right, than for his teaching of the law.
The Bill is entirely silent upon the length of service of the Commissioners. There are no age limits. While I readily concede that there is an advantage in having some eminent lawyers devoting the whole of their time to law reform, it is important that at least the majority of the Commissioners should be, and keep, closely in touch with what is going on in the courts; and this will not be the case if they are appointed for long periods. I believe that it would not be right to appoint a Commissioner for so long a term as ten years—and I hope that we shall have an assurance that that will not be done. I do not myself think that an appointment should be for longer than five years. I would ask the Lord Chancellor whether he agrees with that. What salaries are proposed to be paid? It will be very wrong if the holder of high judicial office is made Chairman and other Commissioners are more highly remunerated. I hope that we may have an assurance that nothing like that will happen.
My Lords, I have asked the Lord Chancellor a number of questions. I hope that we shall be satisfied with his answers. If we are not, then he must expect, and I am sure will expect, considerable discussion during the later stages of this Bill. I am afraid I have taken up a considerable amount of your Lordships' time. I have not dealt so fully as the noble Lord did with the present state of our law. We disagree about that and I do not think it is much use going further into that controversy. But I must confess that I see little in this Bill which could not have been done 1170 more simply, and as effectively, by administrative action. All that was necessary was to expand the existing Law Reform Committees, to supply them with larger staffs and to secure, if possible, the provision of more Parliamentary draftsmen. The only legislation that I can see to have been necessary was to make provision for the payment of salaries to those employed whole-time. I am not against the employment of some whole-time; but I believe that those who serve part-time can indeed play a very valuable part on these Committees.
My Lords, we have in this large Ministry a new Minister dealing with legal subjects, the Minister without Portfolio. Could he not have been put in charge of this work, instead of the Law Commissioners? I see no reason why not. The Lord Chancellor gave us a most interesting account of his duties—interesting, I am sure, to everyone including his predecessors in office. It would have been very interesting indeed to have a similarly detailed account of the duties now being discharged by the Minister without Portfolio. I should have thought that he might well have taken on this work and saved the taxpayer the expense, or some of the expense, involved in the appointment of Law Commissioners.
But one thing we shall have to ask and have cleared up—and I mention it now so that the Lord Chancellor has notice of it—is what is to be the relationship between these salaried Law Commissioners and the existing Law Reform Committees, with their unpaid members voluntarily assisting in the work. Presumably, as the Commission are to be charged with responsibility over the whole field, the Committees will report to the Commission, who will then have to consider the report. That will take time; and it will take time, too, to obtain the views of bodies like the Bar Council and the Law Society. The end result may he that the whole process is not much faster than it is to-day. I hope that that will not be the case, but it may be.
My Lords, I am afraid that I am not enamoured of the machinery that has been devised. In my view, it is cumbrous and not well thought out. I doubt whether it will fulfil the noble Lord's hopes.None the less, we are prepared 1171 to give it a trial and to try to make this Bill as good a Bill as we can. We do not therefore propose to vote against this Bill on Second Reading. We shall seek to improve it, and we shall see how it works. If it does not work well, we shall, of course, after the next Election be free to change it—it may be drastically—so that the object, on which we are all agreed—namely, the reform of the law, where that is necessary can be achieved.
§ LORD CITRINE
My Lords, may I draw the attention of your Lordships to a paragraph on page 60 of the Companion to the Standing Orders, which is as follows:It has been declared to be alien to the custom of the House and injurious to the traditional conduct of its debates that speeches should be read. (Resolution of House, 17, June, 1936.)
§ THE EARL OF LONGFORD
My Lords, I do not think any comment from me is called for. I think that most of us—and I am not alluding to anybody in the House at the moment—at times rely on a very full note. I would certainly not wish to put myself in the position of criticising anybody else for relying on notes which were more or less full than any which I myself have used for many years in this House.
§ LORD CITRINE
My Lords, I have been taking some small part and listening to debates in your Lordships' House, and I have noticed that what is happening is that we are getting a series of essays and not debates at all.
§ THE EARL OF LONGFORD
My Lords, I think we must all take note of what the noble Lord has said. I will not comment on any other speeches, except that of the noble and learned Lord the Lord Chancellor, and then only to say that in all my time, which goes back twenty years, I have never heard a Minister introduce a very complicated Bill with less resort to notes. I think the noble and learned Lord must have created a record in what the noble Lord, Lord Citrine, will clearly regard as the right direction.
§ 4.39 p.m.
§ LORD WILBERFORCE
My Lords, I hesitated a good deal before adding one more speech by a lawyer to the many other speeches by lawyers, most of them 1172 much more eminent than myself, whom your Lordships are going to hear. But perhaps because my support of this Bill is rather more wholehearted than that of the other elderly gentlemen to whom the noble and learned Lord on the Woolsack was good enough to refer, in this case or elsewhere, I am asking the indulgence of your Lordships to make a few observations on it. Full support of this Bill must not be taken—certainly not on my part —to reflect any lack of appreciation or realisation of the very great amount of work in the field of law reform which has been initiated and done under the predecessors of the noble and learned Lord now on the Woolsack, whether the noble and learned Viscount, Lord Dilhorne, or his other predecessors.
There was a whole page in the Sunday Times some weeks ago, across which, in a double row, were photographs of the chairman of various bodies, committees or commissions set up either under the previous Lord Chancellor or his predecessors to deal with some aspects of law reform. I have myself sat on two of these Committees, I am Chairman of a third, and I see around me many other noble Lords who are in a similar position. There is no doubt that over the last five or ten years a very great deal of extremely useful work has been done, and is now being done, in different matters strictly related to the field of law reform. But still, having said that—and I say it quite sincerely—it does not, in my view, take away from the need for a fresh incentive and stimulus, which is what this Bill now provides. What it seeks to do is really to enter into a new dimension of law reform rather than to expand the existing methods; and that, I believe, is what the present age requires.
Of course, law reform is a subject on which it is very easy to be starry-eyed or unrealistic. Almost everybody is his own armchair law reformer; everybody has his hobby horse in the way of law reform, many of them quite unrealistic projects. And not always those subjects which catch the headlines are those which really call for attack. We have had a few examples already this afternoon. The 350,000 cases on the books is, of course, an exaggeration. As an exaggeration it has a measure of truth in it, but it is not really a very practical point, as most practising lawyers know, for by far the 1173 greater number of practising lawyers, who are the solicitors, work perfectly well, and have worked for many years, with the assistance of that excellent compilation edited by my noble and learned friend Lord Simonds, Halsbury's Laws of England, which is, as it were, a kind of inchoate codification of the cases and codification of the laws. So the 350,000 cases is not really a very practical point.
Then there is another point which can always be calculated to get support or a cheer of some kind, and that is a call for the simplification of the income tax laws. But, there again, one has to be a little cautious before one goes on. Of course the laws are very complicated; but so long as we have complicated taxes and a complicated economy, it is useless to suppose one would ever get really simple tax legislation. That is not to say that there is not something to be done in the way of getting rid of inadequate expressions and bringing in modern ones. But one must not over exaggerate what can be done.
One more example of what people often mistakenly think comes within the field of law reform is matters which are really those of social policy and not law reform at all—for example, questions dealing with the eviction of tenants from houses, or leasehold enfranchisement. These are matters of social policy which, once the policy is decided, can perfectly easily be dealt with by the lawyers. But, putting these sort of matters aside, there remains a vast and genuine field for law reform to tackle. The field is so large that one cannot deal with it adequately in what is going to he a short speech. I would take up only one or two of the salient features in the Bill, as they seem to me. I am not going to deal with matters of machinery or organisation, which are, of course, important and to which the noble and learned Viscount, Lord Dilhorne, has devoted a great part of his speech. I propose to concentrate rather on matters of substance, ways in which the law requires improvement and can get it if this Bill goes through.
First of all, in Clause 3, line 27 of page 2, there is a reference to modernisation; and I have no doubt that most people who are interested in law reform are interested in having the law modernised. Our law, in many respects, is not up to date at all; it reflects the standards 1174 of the Victorian period, of the nineteenth century, in such matters as family relations, in many economic matters, in many social matters. To take one or two examples, there is the position of married women: everybody knows that the position of the married women in relation to the family property, with one creditable exception which originated from a private Member, the noble Baroness, Lady Summerskill, still rests as it was in the nineteenth century. It is time that somebody thought whether that requires a change.
Take, again, the position of children. On any theory, the child in this country is subject to parental control and chastisement until he or she is 21. But any one who has sat in court and tried to deal with refractory wards of court, mostly well-developed and economically independent persons of 16 or 17, knows that that law is completely out of date. And yet there it is; one has to pass it by in a conspiracy of silence. To give a third example, company law: that, again, remains very much as it was when the joint stock limited company was created. Some improvements were made, perhaps. in 1908, and a few others since then, but basically the structure remains that of the Victorian age.
So what one wants, apart from forward movements as to detail, which are being carried out under existing Committees, is a general forward movement over the whole field of law reform, to accelerate the process of modernisation by a whole generation at a time. If that is right, it calls for and justifies setting up a special full-time body charged with this job alone; and it calls for, and one hopes will evoke, a special procedure for bringing the proposals before Parliament and getting them Parliamentary time.
May I pass to another subject, which is also referred to in Clause 3, and that is codification. There is, of course, among English lawyers an inbred opposition to codification. They think it is a Continental trick. They feel it is contrary to the spirit of the Common Law, and they say it cannot be done. I do not believe that. I think it both can be done and can he extremely useful. The real reason why codification is needed now, I would suggest, lies in the vastly increased cost of litigation in the High Court, which in effect makes the High Court inaccessible to private persons unless they are 1175 supported by insurance companies, trade unions or other powerful interests. I believe it to be absolutely true that the existence of a well-drafted and up-to-date code has a very great effect indeed on the speed and economy of litigation. if one wants to see an example of that, one need only go to Germany, where they have an efficient and modern civil and criminal code. It is true, as the noble and learned Lord on the Woolsack said, that the judge there does a great part of the work, but, equally, I feel sure that the speed and cost of litigation, which is very low there—indeed, is so low that German lawyers will tell you there is too much litigation in Germany—is largely due to the presence of this codified system of law.
There is no doubt that even in the English language codification is perfectly possible. That was shown in the nineteenth century by the great Indian codes; it has been shown in parts of the Commonwealth and Colonies; it has been shown in States of the United States of America. I do not underestimate in any way the demands of skilled manpower which codification requires. I do not underestimate the time which codification will take. One must not expect miracles in a short time. But when all that is said and done, I believe it is time we really set our backs to the process. In doing so we may get some very beneficial side effects, one particularly in relation to the form of legislation.
Legislation nowadays, as your Lordships know only too well, tends to concentrate on specialised fields. It tends to concentrate on such matters as housing, town and country planning and so on, and therefore tends to build up into a structure of quite extraordinary complication. Once one starts trying to draft legislation according to a statement of simple principles rather than according to detail, one may have developed a habit and technique of legislative drafting which may spread into other fields and have a most beneficial influence on the form of our legislation generally. More than that, by presenting to the courts legislation drafted in a simple way by definition of principles, we may restore to the judges what they have lost for many years, to their great regret: the task of interpreting law according 1176 to statements of principle, rather than by painfully hacking their way through the jungles of detailed and intricate legislation. So I believe that a process of codification, intelligently carried out, will revive the spirit of the Common Law rather than militate against it.
May I make one or two other points? First of all, I believe that law is a valuable export. We are all export-conscious nowadays, but in that matter, as in so many others, we tend to think too much in material terms. We all think in terms of money, of gold, of commodities, and so on, and we forget the other values. Yet surely it is true, in relation particularly to developing countries whose institutions are not yet mature or secure, that one can make just as good a contribution to the stability and happiness of those countries by exporting to them legal institutions based on sound and democratic experience as one can by exporting dams or hydro-electric power stations. As our friends the French know very well indeed, and apply in practice, legal institutions and legal ideas are a cement of very great value in holding together the exporting country and the other countries in pursuit of common values. One must not forget that many countries are run by lawyers, particularly new countries. Therefore, if one can give them some good legal institutions one is doing what they want and giving something they can use.
In many ways in recent years we have been net importers of legal ideas. We have taken them from New Zealand, from Australia, from the United States, and, if I may anticipate, we have taken the idea of an Ombudsman from Scandinavia. That, of course, is a very good thing. I am quite in favour of importing good ideas, but the exchange ought to be two-way. If we are to maintain a favourable "balance of payments" in this field, our ideas must be modern and up to date. But they must also be attractively packaged—by which I mean, to translate the metaphor, that they must he embodied in elegant and well-drafted language.
I am glad to see, in Clause 3(1)(f) of the Bill, a reference to the laws of other countries, to which the noble and learned Lord on the Woolsack referred. That is entirely in the right direction, though as drafted I feel that it does not go quite 1177 far enough. It is a welcome thing that the Commissioners should be invited to study the laws of other countries to facilitate the performance of their functions, as the paragraph says. I should like to have seen stated positively, as an objective of the Bill, the bringing into line of English law with the laws of our neighbours, which is not what the clause explicitly says. I am thinking not only in terms of the European Economic Community—though I have it in mind because I am in favour of anything which brings us closer together. But, quite apart from that, it is ridiculous on any principle—aside from that of keeping comparative lawyers in business—that there should be differences between us and the other nations of Western Christendom on such elementary matters as the sale of goods, or contracts or torts generally. One hopes that the Commissioners will be able to get rid of some of those unnecessary distinctions and, among other things, to get rid of the frustrating differences of domicile and residence.
Lastly, as to the composition of the Commission, I am very glad to see in Clause 1(2) a reference to teachers of law in the universities. I know from my own experience that this Bill is welcome in academic circles. I know that the academic world, at least the university with which I have some association, is very anxious to co-operate in moving law reform forward, and I am sure it will do so.
I would, if I may, make one suggestion at this stage. It is that, as the work develops and the organisation goes on, perhaps consideration might be given in some way to including in the Commission, as well as practising solicitors (whom one does not see mentioned here), laymen and laywomen in the work of law reform. If the generals will forgive me for pirating the expression, law reform is much too serious a matter to be entrusted to lawyers. There are many fields which touch people very closely in their daily lives and where there are non-lawyers who know the problems much better than lawyers. This applies to a whole range of problems—family problems, problems about maintenance, unmarried mothers, adoption, and so on. So I hope this matter will be borne in mind as the work of the Commission develops and 1178 fructifies. There is a great deal more that one could say on this Bill, but others are to speak. I will conclude simply by congratulating the noble and learned Lord on the Woolsack for having brought this Bill forward, and for having invited your Lordships to give it your favour.
§ 4.58 p.m.
§ LORD SILKIN
My Lords, it is a great privilege for me to have the opportunity of congratulating the noble and learned Lord, Lord Wilberforce, on the speech which he has just made. I realise that he hesitated before addressing this House for the first time; and I would tell him that he is by no means unique in that. I hesitate every time I have to address the House: I always have a feeling of trepidation before I speak. Therefore I am not surprised that he should have had the same kind of feeling in speaking for the first time. I can assure him that he will be listened to on future occasions with the same attention and the same respect as we have listened to his speech to-day.
I am going to break precedent by referring to two things that he said in his speech—and I hope that I shall not be called to order by the noble Lord, Lord Citrine.
§ LORD SILKIN
The noble and learned Lord referred to our trying to conform with the laws of our neighbours; and he had in mind particularly, I thought, our European neighbours. I should hope that he would be willing to come a little nearer home and see whether we could not bring the laws of England and Wales and Scotland closer together. I know that it is probably much more difficult in the case of the law of Scotland than in the case of the law of Germany or France; but I hope that an attempt will be made. Then the noble Lord anticipated something that I had proposed to say. I was going to ask the Lord Chancellor whether it would be possible to extend the Commission to include a number of laymen and also, if possible, in certain circumstances, women.
It must have been a tremendous satisfaction to the noble and learned Lord the Lord Chancellor to have the opportunity 1179 of introducing this Bill. It is something which I know has been a part of his life for a great many years, and it is given to few of us to have the opportunity, which has come to him, of fulfilling a long-cherished ambition. Law reform is something which I know has been so dear to his heart that to-day must be a great day in his life; and I hope that it is also a great day in the life of the community as a whole, because the law is very much in need of reform.
The noble and learned Viscount, Lord Dilhorne, rather minimised the need for reform, although he did not dispute it. He referred to what has been done to reform the law by way of consolidation and, to a limited extent, by way of codification; and I agree with him that it would be wrong to denigrate what has been done. But I think he, in turn, would agree that both consolidation and codification have been spasmodic and erratic. While I do not say that they have been the result of particular pressure, I think they have arisen in a very pragmatic way, often due to circumstances which have arisen at any particular time. And, above all, progress has been much too slow. I think he will agree on this, and also that there is a need, if we are serious about wishing to improve our laws, to get on very much faster than we have done in the past. But I say this without in any way trying to write down what has been done.
The Lord Chancellor referred to reform of the law, and I would put reform of the law under three headings. I think there are three essentials in reforming the law. The first is that we should have simplicity. The law must be, if not understandable by every citizen in the country, at least understandable by those who practise the law. And that is not always the case at present. Also, as the noble and learned Lord the Lord Chancellor emphasised, it should he easily available. It should not be necessary to range over large numbers of Statutes, or even to refer to textbooks, as the noble and learned Viscount, Lord Dilhorne, said. A textbook is a guide to the law, but it is not a substitute for finding out what the law actually is. There is, therefore, a very great need for simplification of our laws, both by way of consolidation 1180 and by way of codification. I do not want to enlarge on that matter. The noble and learned Lord the Lord Chancellor told us fully what he understood under both heads, and I am prepared to leave it at that.
I want to come to the next point, and there I feel is perhaps one of the greatest evils of our system—that is, the lack of certainty. I want to illustrate that by two cases which have been reported in The Times in the last few days. I hope that I may have the indulgence of the House in referring to them. The first is the case of a blind man, who was walking along the street and fell down a hole which had been dug by the Central Electricity Generating Board, and who sustained injuries and eventually became totally deaf. He brought an action in the High Court and failed. He appealed to the Court of Appeal and he failed again. He asked for leave to appeal to the House of Lords, but this was refused. He then came to the House of Lords and asked for leave to appeal, which was granted. In due course, his case came to the House of Lords, sitting judicially, and he succeeded. The House of Lords held that the Central Electricity Generating Board were liable.
The case was then sent hack to the High Court for assessment of damages. The High Court Judge assessed his damages at £5,750. When the man appealed to the Court of Appeal against that award he was awarded £10,000. I do not know whether or not that is the end of the story. This happened last week, and it may be that there will be further litigation about it. But ought it really to be necessary that a subject should have to go through all this procedure, with, I think, seven or eight appearances before the court over a period of eight years, and to incur the enormous expense involved, in order to get a decision?
The difficulty arises under two heads. First, there is the question of liability. Ought not the question of liability to be fairly clear under our laws once the facts have been established?—and they were established in the High Court. Ought it to be necessary to go from one court to another to establish liability? Yet that is just what happened here.
Then there was the question of damages. Are there not principles laid 1181 down for the assessment of damages, which should enable a High Court Judge to decide what was a responsible sum, without its being necessary for the man to go to the Court of Appeal, and possibly even further? So I hope that, among the duties that will be required of the Commissioners, there will be this duty of trying to do something which would create in the mind of the citizen rather more certainty about the law than exists at the present time. We all recognise that to-day, very often, the law is a gamble, a lottery. After proceeding from one court to another, a man may get a final decision in the House of Lords with a minority of Judges in his favour. It is theoretically possible to have something like six Judges one way and four Judges the other way, but with the decision of the four Judges prevailing. I think that was the case with the Burmah Oil Company. At any rate, I would plead for a greater degree of certainty.
I want to quote one other case, and I am glad the noble and learned Lord is here, because I believe he was concerned in it. This is the case of a widow —a young woman in her twenties, with one or more children—who lost her husband in an accident. She was awarded in the High Court a sum of money as compensation. There was an appeal, not on the question of law but as to the degrees of liability, and I believe the appeal rested on the fact that this woman was an attractive and intelligent young woman, and was therefore likely to marry again before she was thirty. The Court of Appeal were asked to decide whether or not the chances were that this young woman would be married before she was thirty. I imagine it was an agreeable task for the Court of Appeal. I expect this young woman went to the court all dressed up and dolled up and was duly inspected. I do not know whether her I.Q. was tested, but somehow the Court of Appeal decided that there was a probability that this young woman would be married again before she was thirty and they knocked £2,000 off her compensation.
I do not want to say very much about the merits of it; that is not my business. I am not an eminent lawyer, and I have no right to express art opinion against the view of other lawyers so much more 1182 eminent than I am. But it does seem to me shocking that this question of whether it is right to reduce compensation because of the prospect of a woman marrying, and of the competence of even an eminent Court of Appeal to make up their minds on it, is not something that was settled long ago, as it ought to have been; and I think that it should not have to be dealt with by way of appeal, with all the costs involved. I do not know this poor woman, and I do not know what the decision of the Court of Appeal was as to costs; but I should think that, in the normal way, she having lost the appeal to the extent of £2,000, she was, in addition, ordered to pay the whole of the costs of the appeal, or at any rate some of them. So I hope that the Commissioners will be enabled to examine cases of this kind as they come along. This case is common knowledge, and I hope that if it strikes them that cases of the kind I have mentioned call for investigation they will be enabled to do so and to suggest ways of dealing with them. But, above all, there ought to be a far greater certainty about the law, once the facts have been established, than appears to be the case at the present time.
The third thing to which I want to refer is the cost of litigation. I know that to-clay people are able to obtain legal aid, but there is a wide range of people who come just outside the limits for legal aid and, if they go to law, have to do so at their own expense, and they just cannot afford it. If they lose their case they are ruined. It would take up virtually the whole of their resources; or, at best, they would suffer great hardship. Something ought to be done to reduce the cost of litigation, and I hope that this, also, will be one of the important matters which the Commission will deal with.
My Lords, I do not want to say vety much more, except a few words about the speech of the noble and learned Viscount, Lord Dilhorne. It sounded very familiar to me, this tepid support of a measure which is a good measure and is in the public interest. I remember introducing the Town and Country Planning Bill many years ago in another place. I thought it was a good Bill. I still think so; and events have proved that it was. The Bill was not opposed, but it was received with 1183 cynicism and apprehension, and a great deal of cold water was thrown on it. Doubts were expressed whether anything would come of it, and so on—exactly the same kind of speeches were made as the speech we heard from the noble Viscount, Lord Dilhorne. Indeed, I expected he would make that kind of speech, because I knew he could not really oppose the principle of the Bill. He went on to probe the Bill, and there I agreed with him. There is a great deal in this Bill which does need probing, and which I hope we shall probe very carefully in the course of further stages of the Bill. A lot of the provisions are not clear, and certainly it is not clear so far precisely what will be the functions of the Commissioners, how they will relate to the functions of the Law Reform Committees that are sitting, and how they will tie up with the work of the Parliamentary draughtsmen. But these are things which we can go into at the Committee stage, and I have no doubt at all that we shall all got satisfaction at the end of the day.
The other matter the noble Viscount referred to was the lack of Parliamentary draughtsmen. I admit that it is a highly-skilled profession, and a profession standing by itself, but surely he does not suggest that we cannot get from among the very eminent chancery lawyers the Parliamentary draughtsmen we need, if we set out to get them. I know that they exist, and if we try to induce them to enter the profession of Parliamentary draughtsmen I am sure we shall have no difficulty, provided that we can offer them continuous employment, as it seems we can.
So I see no reason for apprehension about this Bill. As I have said, I have no doubt that many of the ambiguities and lack of clarity of the provisions, particularly as regards the functions of the Commission, will be cleared up as we go along. Subject to that, I am delighted that this Bill has been introduced; I am sure that every noble Lord in this House will wish the Bill every success in its passage, and the Commission every success once it is set up.
§ 5.17 p.m.
§ VISCOUNT SIMONDS
My Lords, it is very seldom in recent years that I have 1184 ventured to intervene in your Lordships' debates, perhaps to make up for undue loquacity in previous years, but the sound of law and law reform was, I am bound to say, like a trumpet to me, for, though I cannot claim, as my noble and learned friend Lord Goddard could claim if he were here, to have held a brief in court in the reign of Queen Victoria, yet for over sixty years my life has been in the law, as Bar student, member of the Bar, member of the Bench and, for many years now, a Member of your Lordships' House. Therefore, I take a profound interest in the law and its reform. And perhaps I may add this, since the noble and learned Lord, Lord Wilberforce, was good enough to mention it: as the editor in chief of the third edition of Halsbury's Laws of England, I recently read and approved the last page of the last volume. The last page of the last volume was in fact the last page of the fortieth volume, and was something like the 30,000th page. In the idiom of to-day, my Lords—some law! I feel justified in hoping, therefore, that to my successor, whoever he may be, the editor of the fourth edition, a somewhat less burdensome task may be given.
Therefore, I start by wishing this Bill well. Yet I am bound to say I have some doubts, for the fact is that a great deal of nonsense is talked about law reform—I do not of course mean by the Lord Chancellor, except to a very limited extent. But I have heard it said that it is the hallmark of a civilised society that its laws should be brief and simple. That is exactly the opposite of the truth. In a civilised society such as ours—and I am sneaking of England as well as of Scotland—the endless elaboration of society's organisations, the ever-varying relation between one human being and another, the refinements, the intricacies of business and commerce and, above all, the thousand and one points at which the State, by Statute, seeks to control and order our lives, together make a complex mass of rights, duties and liabilities which we call the law. That law is not going to be simplified, so that it can be put in simple language into a few volumes, by angels or archangels, or even by a Law Commission. It cannot be done. Therefore it is a great mistake, if the noble and 1185 learned Lord who sits on the Woolsack will allow me to say so, for him to set his sights too high or to induce too high a hope.
Having said that—and I hope he will not think that I say it out of any ill-will to him or to his Bill, or to the law which we both serve—I come to this Bill and I must make some somewhat critical comments upon it. I am not going to say anything about the Constitution, although at a later stage that may be necessary, for I have some doubt as to how far it is right that a High Court Judge should be taken from his judicial duties, put into what is an executive office under the authority of I know not whom, and then sent back again to the Bench. That is the sort of question which will have to be considered when we come to the Committee stage of this Bill. I propose only to say a few words about the functions of the Commission.
When we talk about law reform, we have two different aspects of that in mind. I am not going to talk in the rather grandiloquent language of the Bill about modernisation and systematic development, or anything of that kind. What I am concerned with is this double aspect: the reform of the form of the law and the reform of the substance of the law. These are two things which must be kept quite separate and are suitable, I think, for different machinery.I want to say a few words about the reform of the form of the law. I think that what we have to consider is, again, two things: the reform of the form of what we call the judge-made law, Common Law and equity; and the reform of the Statute Law.
Let me say one word about Statute Law. I had thought that we had now in operation as nearly perfect a piece of machinery for reforming the Statute Law as could be devised. Consolidation is an old story; but a great impetus was given in the year 1947, I think, by the late Lord Jowitt (how he hated to be called "Jowett"!) to the process of consolidation. In that connection one should not forget the assistance given to him by the former First Parliamentary Counsel Sir Granville Ram, and Sir Edward Bridges, now Lord Bridges, who induced the Treasury to pay for extra Parliamentary counsel.
That Committee—the Statutory Law Revision Committee is its name, I think 1186 —was set up. It was an extremely high-powered and competent Committee under the chairmanship of the Lord Chancellor. It was the duty of Parliamentary counsel, after taking advice and consulting with the Departments concerned, to produce a programme for the year and to put it before the Committee, who considered and approved it; and Parliamentary counsel got to work accordingly and produced the Bill. I am told that no fewer than 90 Consolidation Bills (or Acts, as they became) have been passed in that way. I think there was one only to-day; therefore that makes it 91. At any rate, it is a considerable number.
Why were there not more? There is no reason at all except that there were not more Parliamentary counsel. The whole of that work could go on perfectly well as it is, no call being made on the Law Commission at all. What I rather fear—and I hope that the Lord Chancellor will think it fit to deal with this —is that it is a question of the Law Commission's being not only superfluous so far as this is concerned, but rather mischievous. What is to happen? Are there to be two programmes or only one? Are Parliamentary counsel (for it is only they who can draft the Bill) to give first priority to their own programme, which they submit to the Lord Chancellor and his Committee, or are they to consider first the Law Commission and what they say? I hope the Lord Chancellor will deal with that point. If your Lordships will look at the Bill, you will see that the Law Commission are, under Clause 3(1)(d):to prepare comprehensive programmes of consolidation and statute law revision".That is already done admirably under the present machinery; so really it would be rather a pity.
The other branch of the reform of the form of law deals with law which is not Statutory Law; that is, case law, judge-made law and, to some extent, the writings of the institutional writers. If the form is to be reformed, it can only be by codification. I listened with great interest to the admirable speech of the noble Lord, Lord Wilberforce, but on that point I venture to disagree with him a little. Ever since the time of Jeremy Bentham it has been a matter of controversy, the advantages and disadvantages of codification being put forward 1187 by one side or the other. I am not going to embark on that controversy to-day—it would take a very long time—but it is quite sufficient to say that if it is desired to codify any branch of the law, that does not demand the services of the Law Commission. Obviously they could not codify it themselves; therefore their only task would be, first, to determine what branch of the law is now ready for codification, and, second, who should do it.
I listened with sympathy to the interesting narration by the Lord Chancellor of his duties. I may say that I know something of them myself. But I am bound to say that, hard-pressed as one was as Lord Chancellor—and the noble Viscount, Lord Dilhorne, will know the same—I do not think I should have found any difficulty in getting proper advice if there was any branch of the law that required codification and myself selecting the person to whom the duty of codification should be entrusted. That is the way a code is prepared. The great exemplar we always take is the Bill of Exchange Act, 1888. How was that prepared? A great expert in that branch of the law and a great draftsman, Sir Richard Chalmers, was invited to draft the Bill; and he did it. Exactly the same process can be repeated. Therefore, I venture to say to the noble and learned Lord, the Lord Chancellor, that so far as this branch of the duties of the proposed Law Commission is concerned, there is no need for them at all. They are certainly superfluous and they might be mischievous.
Now I come (though I feel that I ought not to take any more of your Lordships' time) to saying a few words about the substance of the law. It is difficult to say anything until one knows what is exactly in the Lord Chancellor's mind about this. I have read the Bill and the White Paper, and most of the debates in another place, but I am still left wondering whether it is to be the duty of the Commission either to initiate or to take any part in questions of policy, where matters of Party policy are concerned. Let me take a clear case, because it is topical to-day. Are they to concern themselves, for instance, with capital punishment? Is anybody going to listen to them if they do? There are 1188 other great controversial questions of that kind which seem to me to be outside their scope altogether.
Then there is another branch of reform in which I should have thought it very doubtful whether they could serve any useful purpose—that is to say, all those parts of the law which are within the province of Government Departments. To take one example, an amendment of the Factories Acts, what have they to do with that? This is a very important question. The relevant Department is in touch with the employers' associations and with the trade unions. It has its inspectors, and all the knowledge and expertise necessary for the reform of the law; and it has its own very able legal advisers, Would the noble and learned Lord the Lord Chancellor explain, in a case of that kind, what part the Law Commission are to take, and at what stage? There seems to me a great area where they can perform no useful purpose at all. I should be very glad to be enlightened on that part of their functions.
That undoubtedly leaves still a sort of no-man's-land, which is not within the province of any particular Department but has always been held to be within the province of the Lord Chancellor himself, the traditional guardian of the law. I should be extremely sorry if, whatever his other duties were, the Lord Chancellor were to abdicate that part of his sovereignty. It seems to me that that should come first. And I was a little distressed to hear the noble and learned Lord suggest that it would not fall within his power to take a large part in that traditional part of his duties. But here, too, one must remember this fact: that he has, and can call at any moment on, a very high-powered Law Reform Committee.
If I may strike a personal note, I had a good deal to do with that Committee, for when I came into office in 1951 the previous Committee, known as the Law Revision Committee, had almost been liquidated. I will tell your Lordships part of the history of that Committee. It is very interesting as throwing a light upon the possibility of reform. Early in 1952, soon after I came into office, I appointed a Committee, the Law Reform Committee, which was extremely flexible, very high-powered, and competent to 1189 work by sub-committees and, with the consent of the Lord Chancellor, to co-opt other members, able and willing to do most valuable service, which they did.
I realise that they were mostly busy men and that they could not give their whole time to this work. But it is the proud boast of the learned professions, and not least of the profession to which the noble and learned Lord and I belong, that we will give voluntarily whatever services are required for the benefit of the State; and I never heard of anybody being unwilling to serve, or being unwilling to give all the time that was required for that purpose. I ought not, perhaps, to speak for myself, but I was once a member of a Committee of that kind at a time when my time could have been valuably employed. We had no fewer than 50 meetings, averaging two hours each. And I was not the only one who willingly gave up his time for that service. I do not believe for a moment that, particularly where we have a flexible Committee, such as I appointed (and the noble and learned Lord was himself a member of it), it would be difficult to get all the assistance that the Lord Chancellor would require. Perhaps he would be good enough to deal with that point, also.
I have dealt with the various functions of the proposed Law Commission, and I am just wondering whether they are worthwhile. If the noble and learned Lord the Lord Chancellor has any difficulty in answering that question, I will supply him with one answer. It is this, Notoriously, what we get for nothing we do not care much about; and it may well be that the Cabinet and the Government, when they have put before them a Report, and perhaps a draft Bill, which they have got for nothing, as the result of voluntary service of a high-powered Committee, will not give Parliamentary time for it. But if they get it from a Commission, at the cost of £200,000 a year (even to-day, when we have entirely forgotten what in the Gladstonian era they called "candle-end" finance, £200,000 is still worth something), I cannot help thinking that the Lord Chancellor will be in a much stronger position with his colleagues than. I was with mine. If he can go to the Government and say, "Here is a Bill, which cost us £200,000 to get; what will the country say to us, if we do not give Parliamentary time for it?" his position 1190 will be strengthened. And that, I believe, is going to be the great virtue of this Bill. I have occupied more of your Lordships' time than I should have done, but with those last words I wish the Lord Chancellor well.
§ 5.38 p.m.
THE EARL OF SELKIRK
My Lords, it is rather an intimidating experience to speak after the sort of speech to which we have just listened. I am sure that all noble Lords were glad to hear the noble and learned Viscount, Lord Simonds, again.
I do not want to deal with the structure of the proposed Law Commission, but rather with the methods proposed under the Bill. We have heard the grounds on which the noble and learned Lord the Lord Chancellor has brought forward this Bill, on a subject to which we know he has given a great deal of thought over many years, and on which he is extremely keen. It was a privilege to hear his exposition of what he wished to do. But it is obvious from the speeches which have been made that there are going to be considerable difficulties in putting the Bill into effect. I should have thought that we should consider this Bill as one which will at some stage alter the procedure so as to give prior status to proposed law reform legislation. The noble and learned Lord referred slightly to this aspect, and if he can say anything more on this point, I shall be pleased. This will be important when we come to consider the Bill on Committee stage.
It is fairly obvious that this is an English Bill, to which has been tacked an item providing for Scotland. Indeed, the Bill starts off by dealing with "The Law Commission", which strictly, I suppose, should be the "English Law Commission". The noble and learned Lord, in his speech, confirmed that by devoting one sentence to Scotland. In the words of a Government spokesman, "the law in Scotland is not in such a mess as the law in England". I do not propose to give any opinion upon that, but the matter is evaluted in the financial clauses as £150,000 to England and £60,000 to Scotland. It is obvious that the two approaches are very different.
I should like to make a plea for a good deal of flexibility in dealing with 1191 that aspect which particularly affects Scotland. This is brought out clearly—much more clearly than in the Bill—in the financial White Paper which preceded the Bill. The first four or five paragraphs dealing with English law are admirably clear, and, I suspect, were written personally by the Lord Chancellor. Then there is tacked on another paragraph, of an entirely different character, dealing with it in an entirely different way. There is one phrase to which I should like to draw attention. It appears that the lawyers to be appointed in England will be "distinguished"; but there is no suggestion at all that the lawyers from Scotland will be "distinguished". I should be grateful if the noble and learned Lord would clear up this difference.
Another point is that the lawyers in Scotland will want to clear up ambiguities. That object appears nowhere else. Another suggested duty is:to suggest reforms where the law is found to be unsatisfactory or unfair".Those words appear nowhere else. What I think we in Scotland are concerned about (although the Lord Chancellor says that we are keen to get tagged on to this) is that, unlike England, we are abolishing the Lord Advocate's Committee, which has been doing this work in a somewhat similar way to the Lord Chancellor's Committee. I do not know why this is happening. The only reason given in another place is that the new Committee could start afresh, unencumbered. Frankly, I do not understand in the least what that means.
It is difficult to be too precise on this matter, because many of the members of the legal profession in Scotland are uncertain of what is intended. But it appears that there will be on the Scottish Commission one permanent Chairman and four part-time men who will give a substantial part of their time to this work. I do not know whether this is enough. I am inclined to think that possibly this is the worst of both worlds. As the noble and learned Viscount, Lord Simonds, has just said, you can get first-class work from voluntary people. You can also get first-class when people are well paid. But there is some doubt as 1192 to whether, in the immediate stage between those who work voluntarily and those who work when well paid, you will be able to get the best people. That, I think, is one of the major concerns.
To think that voluntary people can tackle as a Commission all that is laid down in paragraph 3, and that which has been described in some detail by the noble and learned Viscount, Lord Dilborne, and others, is, I think, to throw on them a task which is clearly beyond the orbit of a voluntary body. They could tackle part of it; but if the intention is that they should tackle all of it, I think a voluntary body cannot possibly deal with this. I do not know whether it is intended that one committee should deal with it all, or whether it will be divided.
There are various things which want doing. Consolidation is almost entirely, I suggest, a matter for draftsmen. And when it comes to reform, unless it is purely lawyers' reform (we have not heard about that), a lawyers' committee is not the right one to deal with it. When it comes to codifying, many of those active in the law in Scotland are concerned that it would put the law into too much of a straitjacket. But one thing is sure, and it is that codification demands the greatest possible talent.
To turn now for a moment to the structure of this Commission, there is always difficulty in finding the equivalent of the Lord Chancellor in Scotland. The Lord Chancellor is Lord Chancellor of Great Britain; but while he enunciated a large amount of the work Ile did, he did not mention a single stroke of work that he did in Scotland. I do not suggest that this is a dereliction on his part. In this case the choice has been made, I believe rightly, of combining the tasks with the Secretary of State and the Lord Advocate. I hope that at times there will be consultation with the Lord President, because I think it is right that there should be. But I also hope that, in point of fact, it will be clear that this is primarily the Lord Advocate's job, and it is not really the Secretary of State's job to interfere too much. This may be a difficult matter even for the Lord Chancellor to answer at this stage. I think it is important that the Lord Advocate of the time should have considerable flexibility in the way in which he handles this.
1193 The noble Lord, Lord Silkin (he is not here at the moment), spoke about bringing English and Scottish law closer together. It is suggested here that the Commissions should meet from time to time, and I am sure that is right. I am bound to say that I think a full-time Commission has a great advantage over a part-time Commission at the time of meeting; and I hope this will be borne in mind when the Statutory Instrument is issued.
I do not think this will have the effect of drawing much of the law together. I could certainly suggest a number of things in English law which I find it very difficult to understand. The concept of equity is always one that we find utterly incomprehensible, and it is a monument to the pragmatic ability of the English that they are able to work two systems of law inside one. But one suggestion I would make is that I think the English would do well to abolish coroners' inquests and trust somebody similar to the Lord Advocate to do work of this character. However, I will not pursue that.
I should like to put this suggestion to the Lord Chancellor. There is to be a Statutory Instrument. Can the noble and learned Lord say whether there will be separate Statutory Instruments for Scotland and England, or will there be a common one? Statutory Instruments are difficult; if not agreed to, they cannot be amended, only withdrawn. I hope that in this case the Statutory Instrument will be laid in draft, as sometimes happens. With those few words, I hope that the noble and learned Lord will be successful in what he has in mind; and I do not think the law will come to any harm from being given a push one way or the other.
§ 5.49 p.m.
§ LORD REID
My Lords, I am glad that my noble friend Lord Selkirk has raised the Scottish position, but, if he will allow me, I will postpone for a few minutes the remarks I should like to make on that subject and make first one or two observations of a general character, I support this Bill for this reason: I do not think it reasonable to expect Committees, as they are set up at present, to tackle all the work which obviously must be tackled in the coming years. I would add my tribute to those which have already been paid to the work of the 1194 several Committees in past years. Indeed, I think it is almost incredible that they have done as good work as they have, in fact, done. But they will be working under an impossible handicap if they are going to do more than tackle small things at a time. We cannot expect a Committee composed of busy men, meeting only intermittently, and after working hours, to deal with broad general topics; and it is with these broad general topics that I hope the new Commission will be concerned.
Last year, I suggested in this House what I thought was a simpler method of achieving the object which this Bill sets out to achieve—and I still think this Bill is rather over-elaborate. However, I am not going to quarrel about that. I am quite prepared to accept the machinery as it is now proposed, provided that it is used in the right way. I am afraid that the very wide language of this Bill has already raised many false hopes which are unlikely to be fulfilled. I think it is a great pity that the very wide language has been used. It will tempt the Commissioners; and w ill perhaps tempt even my noble and learned friend on the Woolsack to give them directions which will do more harm than good. If the House will bear with me for a few minutes, I should like to distinguish those functions which I think the Commission can usefully undertake, and those which I think it cannot. As my noble and learned friend Lord Simonds said a few minutes ago, we must separate reform, in the sense of altering the substance of the law, from reforming the law, in the sense of rewriting it without altering its substance. The two require quite different gifts, and it may be that the Lord Chancellor will succeed in finding supermen. But unless he does, it seems most improbable that the Commissioners are going to be equally good at both of these tasks.
Taking first the reforming of the law, the re-writing, there are, as has already been said, three elements to be considered, and I shall try to deal with these rather shortly. There is consolidation; there is re-writing Acts of Parliament in simpler language, and there is codifying the Common Law. So far as consolidation is concerned, nobody has any doubt about the necessity for doing that. I was a little sorry to see in the White 1195 Paper a rather grudging appreciation of what has been done in the past. It is true that some progress has been made with these tasks, and I think we might have had a little more of a tribute to what has been done by the Parliamentary draftsmen during recent years.
Codification goes back more than a century. It has been going on at an accelerated pace and, as has been said, the only limit is the number of draftsmen. I hope that the Government are not too optimistic. But time will show. Of course if they cannot get any more draftsmen, they cannot have any more codification. That is perfectly simple. But it is possible to exaggerate the advantages of codification. It will not carry us very far. To begin with, there is, as many of your Lordships know, an admirable Stationery Office publication, Index to Statutes in Force, and no trained lawyer has the slightest difficulty in finding the relevant sections on any topic in which he is interested. It is true that it takes him a few minutes. It is true that he has to be in a library and take a few books down from the shelves. But for the trained lawyer, the handicap is not serious. The handicap is serious when you are dealing with the administrator who does not have a law library, and who is not accustomed to dealing with these matters. Therefore, it is very important to consolidate. But it does not really solve a great many problems.
Let me give one example which we had recently. We had a case under the Licensing Acts, which have been consolidated twice, if not three times, and we found that the various sections simply would not fit together. The reason was that they all came from different origins, and in the process of consolidation you cannot, of course, alter the substance of a section—you must leave it. Therefore, the sections were discordant to start with, and they are still discordant; and no amount of consolidation will ever remove that difficulty.
That brings me to the second task which I think can be attempted, although with some caution; that is, the re-writing of Acts of Parliament with a view to making minor amendments, and possibly with a view to producing less complexity of phraseology. But we have to be 1196 extremely careful about that. Let me give another example. The Coal Mines Act was re-written ten or twelve years ago, I have no doubt with the highest skilled technical assistance, and I have no doubt that the re-writing has done a great deal of good. But we have already seen two cases in which it did a great deal of harm. In two cases we have already found that it is impossible to square the new language with the old law; and although it is pretty obvious that no alteration was intended to be made by the draftsmen, we have been forced to say that in two quite important respects the law has, in fact, been altered. That, of course, is the risk whenever you start re-writing Acts—you alter the law in a way which was never intended. It requires the highest degree of skill to avoid that; and even so it will not always be avoided.
Now I want to come to the point which I would make above all others in what I am saying to-day. The first point about the law is that it shall be certain. If it is unjust, then alter it. But it is very much better that the law should be certain than that it should be apparently simple. I was very much disturbed by the very first sentence in the White Paper, which says thatOne of the hallmarks of an advanced society is that its laws should be readily accessible to all.If that means that one is going to start a sort of "do-it-yourself" in the law, then I would say that nothing could be more disastrous. Surely the advice we must always give the layman is: when in doubt, go to your solicitor. If legal aid is not sufficiently expanded to make that practicable advice, then the remedy is to afford more legal aid; but it is not to spoil the certainty of the law by trying to make it intelligible to the ordinary man. However simple you make the law, you are always liable to find that, unless the layman goes to his solicitor first, he will take some fatal first step which no amount of legal assistance later on will be able to overcome. Therefore it is dangerous to represent to people that they can easily understand the law in its new guise. They will not be able to do that; and if they try they will get into trouble.
The other aspect is codification. I could quite easily make a whole speech 1197 in setting out the demerits of codification, and I am afraid that on this matter I disagree completely with my noble and learned friend Lord Wilberforce. I am not going into the merits at all: I am only going to suggest one subject for investigation before one embarks on codification; and it is this. The Continental countries have for generations had Codes, but if the touchstone of the law is certainty, then you judge the law by this question: if a man goes to his solicitor and says, "On these facts what will the court decide?" and the solicitor is able to give definite advice, either before or after consulting counsel, then the law is good. If the solicitor has to say, "On those facts I cannot say what the law will decide", then the law is bad. I should like to have it investigated whether a man is more likely to be able to get advice, and definite advice, from his solicitor in this country than in, say, France or Germany. My strong suspicion is that he will get definite advice more often in this country than he will in those other countries. If that is so, then our law is better than theirs. I think it is about as simple as that.
But I am not going to oppose experiments. I belong to the school of thought which believes that an ounce of fact is better than a ton of theory. Many people obviously think that this re-writing both of the Statutes and of the Common Law can be done satisfactorily. Many others think that it cannot. It is no good arguing about it. Let us try and see, and I hope very much that this Commission will try and see. If they are successful so much the better; but if, as many of us fear, they are not, at any rate no harm will be done. One or two Acts or small Codes will be produced and found not much good, and then we can stop and go back to where we were, and nobody will be much worse off. We shall all be much wiser. But certainly let us try an experiment.
§ LORD SILKIN
My Lords, we have actually codified quite a number of our laws. Would the noble and learned Lord say that they have been successful or unsuccessful?
§ LORD REID
It so happens that most of the branches that have been codified are branches that have been fully developed. Take, for instance, the sale 1198 of goods. People have been selling goods for some thousands of years and almost every question that could arise had arisen. Therefore, you had a formed body of law to codify, and if it had not been for Chalmers' great skill I do not believe we should have as good a code as we have. That was an exceptional code. Very much the same thing applies to bills of exchange. When it comes to the more modern attempts to set things out in Statutes in intelligible form, there have been very few Statutes in the last thirty years that one would say were works of art.
The same people must, of course, do it unless the Commissioners are themselves going to be able to develop a skill in codification. I do not know who they are going to get to do it, but certainly let us try not to raise false hopes about it. Let us try a new habit of drafting, if you like. The object in drafting ought to be simplicity without ambiguity. I think that probably if we used more words and shorter sentences, and tried to be less compact, we might make a better job of drafting. I have not myself drafted, except in a very small way, and I have no doubt there would be many snags if I tried to do so. But let us try. But let us all through remember this: we must never risk losing the advantage of certainty for the apparent advantage of simplicity; and if the two cannot be brought into line, then certainty must prevail and simplicity must go by the board.
My Lords, let me say a few words, before I come to the Scottish position, on what I believe should be the primary duty of these Commissioners: that is, reforming the law in the sense of altering its substance. It has already been pointed out that it would be futile for the Commissioners to deal with broad questions of policy, particularly those with political implications. They would simply be wasting their time; nobody would pay any attention to them. Their views would be worth no more than the views of any other five men who know the facts, and that would be a misuse of this body.
The other point I wish to make is with regard to departments of the law which are a peculiar preserve of particular Government Departments. I see no reason why the Commission should not give advice to Government Departments, but I do not 1199 like the word "assistance"; I think that is going too far. Why should these Commissioners be taken away from their proper job of reforming the law, to give assistance to a Government Department? It seems to me to be quite wrong. I am quite sure there is ample scope for the next five or ten years to deal with what has been called lawyers' law. I am not going to enumerate the subjects, whether it is a score or two score of topics that the Commissioners have to deal with, but it is something of that order; and that would keep them going for five or ten years. I would think that if they would concentrate on that and leave all these other things, apart from an odd experiment, to be dealt with later, they would do very much more for the improvement of the law than if they allow themselves to be diverted into other spheres.
Of course, it would be silly for them to take up departments of the law which are the subject of acute controversy. Let me give just one example. I see no reason why these Commissioners should not deal with the whole of criminal law down to the stage of juries' verdicts, because down to that stage there is not a great deal of political feeling about it. But as soon as you get to the question of what you are to do with the prisoner, then I would say that these Commissioners had better keep well away because there are so many people who have divergent views on that question.
I think I need not deal with any of the other matters except Scotland. I think the White Paper is right when it says that the Scots' position is not so acute as in England, because I think that, in so far as Scots law differs from English law, it is probably in better shape. I think, further, that the Bill is right in proposing a full-time Chairman in Scotland, because not only will there be the organisation of the programme and dealing with purely Scottish problems, but the Scottish Commission will have to keep in touch with the English Commission by personal meetings with regard to all those topics on which the law of the two countries is the same or similar, and the Scottish point of view will have to be represented. Therefore, I see no objection to a full-time Chairman, but I think it is a pity that the Lord Advocate's Committee is to be abolished and this smaller body put in its place.
1200 I can see that if you have full-time members you may have a very large body, but if you are having part-time members I see no reason at all why the present Committee should not carry on, perhaps under another name—that does not matter—but I think it is a pity that that has been changed.
There is one matter which I must press a little more, not because I am asking for alteration, as I shall explain in a moment, but because there has been considerable apprehension expressed in Scotland. Your Lordships will see that in Clause 2 not only appointments but the settlement of programmes, and so on, is to be done by the Secretary of State and the Lord Advocate jointly. At first sight it seems to me quite impossible to justify bringing in the Secretary of State at all. The Lord Advocate is in no sense subordinate to the Secretary of State. He is directly responsible to the Prime Minister and, of course, like any other Law Officer he takes no directions from anybody as to how he shall carry out his duties. But what does the Secretary of State know about either legal personalities or legal problems?
If one could stop there I would put down an Amendment to leave out the Secretary of State; but I shall not do so for this reason. It is becoming more and more difficult to-day, unfortunately, for any Party to get a Law Officer into Parliament. As the noble and learned Lord knows well, there is no Scottish Law Officer in Parliament. I do not know how long that position may last, and I can quite see that with a matter such as this it is very undesirable that there should be nobody in Parliament who is answerable for certain questions or criticisms that are brought up. For that reason, and that reason only, I would tolerate the association of the Secretary of State with the Lord Advocate.
But I would say this. There are at the moment quite a number of matters in Scotland where nominal responsibility rests with the Secretary of State but where what happens in practice is that the Lord Advocate makes a recommendation, and never in my recollection—and it is quite a long time now—has the Secretary of State refused to follow the Lord Advocate's recommendation. Of course he can, if there is some special reason; and I think if the critics could be assured 1201 that some practice of this kind would grow up with regard to this Commission and that, although the Secretary of State has to concur, it really is the province of the Lord Advocate to make these decisions and make these appointments, a great deal of apprehension would be allayed. Perhaps it is asking too much that the Lord Chancellor should say anything about it to-day, but if he is able to make at some stage some statement on the question, I think it may do some good.
Finally, the real difficulty, of course, in all this, is Parliamentary time. I am glad to see that in the White Paper it is proposed that the detailed proposals for reform are to be published, and I would only suggest that they should be published well in advance of the introduction of any Bill, so that all those who are concerned, be they legal societies or trade bodies who are involved, or anybody else, may have an opportunity of considering them and, if necessary, submitting their views to the Commission before legislation is introduced. Otherwise, if the thing is rushed, you will have a lot of people coming up with criticisms and the Bill will not go through either House as quickly as it should. But if sufficient time is allowed, and of course if the Commission keep off dangerous ground, I think there should be a good prospect of quite a stream of valuable Bills coming forward. I see no reason why that should not go on for five or ten years, and I should think that by that time lawyers' law ought to be in pretty good shape. Thereafter, nobody can prophesy how these things will develop, but I would look forward, provided the Commission devote their time to the right kind of thing, to five or ten years of really useful work.
§ 6.13 p.m.
§ LORD TANGLEY
My Lords, in the course of this debate I have heard two quite shockingly bad pieces of advice given. One came from the noble and learned Lord on the Woolsack, the other from the noble and learned Viscount, Lord Dilhorne; that makes it a draw. Both were addressed to a man who wanted to know about the law of landlord and tenant. He was advised from the Woolsack to read a large number of Acts of Parliament, a much larger number of Statutory Instruments and several thousand cases. That was shocking. The noble and learned Viscount, Lord Dil- 1202 horne, said he should get hold of a good textbook and read it. That is only slightly less shocking. The obvious thing a reasonable man at Common Law would do is ask a solicitor.
I appear before your Lordships this afternoon as a solicitor, and I do so because the solicitor is much nearer to his client, the ordinary citizen whose end is to be served by any change such as we are discussing this afternoon, than any other kind of lawyer, whether he be a judge or a barrister. The solicitor and the layman, his client, lead their lives alongside one another. The solicitor is with his client before any litigation is contemplated; he is with his client during the course of the litigation; and he is with his client to rejoice or otherwise, or in the case of disaster to try to explain it away, after the case is finished. Therefore, I think a solicitor must approach the subject we are discussing this afternoon naturally looking at it through the eyes of his client. And, doing that, I find myself wholly in support of the Bill.
There is not the slightest doubt, as one leads one's life with one's client, that there are large areas of the law where there are gaps, overlaps, confusions, anachronisms and archaisms which are quite unnecessary, and which only remain as they are because there has not been in the past adequate continuous machinery for looking at them and rectifying them. In saying that, I do not in the least wish to derogate from what has been said as to the work that has been done. Great work has been done, but it suffers, I think, from the defect that it has not been sufficiently continuous and concentrated.
Having said that, I should like to dissociate myself from some of the things said by the noble and learned Lord on the Woolsack in his speech. I do not think he gave to the public a fair account of the state of English law as a whole. He certainly drew attention to a large number of instances which are very well open to criticism, but they are exceptions and they are not the general rule. I would say, thinking of the way in which clients look upon the law, that they still look upon the law with very great respect. Particularly do they look upon the Common Law and equity and the relationships which are governed by Common Law and equity with very great respect 1203 indeed, for they seem to tune in with their own inmost thoughts and feelings. They reserve their contempt—let me be quite frank about this for the way that Parliament conducts its Statute Law. I should like to refer to that again in a moment.
The great virtue of this Bill, as I see it, is that it provides continuous concentrated machinery for dealing with the situation which undoubtedly exists. I want it to succeed. I want the Bill to go through and I want the machinery to succeed. But I hope that the Commission, when it begins its work, and the Lord Chancellor or whichever other Minister it might be, when he surveys and stimulates the work of the Commission, will act discreetly, because if there is indiscretion I believe the whole thing could fail. There are varieties of indiscretion, many of which have been referred to this afternoon. There would be the grave indiscretion of allowing this Commission either to initiate or to consider changes in the law which deal with deep moral or political problems. I believe if they started doing that sort of thing, they might as well finish their work altogether, because they would lose all power and respect.
On the other hand, I believe they could do more than deal with mere lawyers' law. There is a considerable area of law, I think, which can be "cleaned up", if I may use a colloquial term, quite well by this Commission, and yet is not altogether within the category of lawyers' law. I hope that they would be very discreet in the matter of codification. Codification is an attractive idea. I have myself been in the position of having to deal with legal proceedings in many foreign countries where codification exists, and I would confirm the doubts expressed by the noble and learned Lord, Lord Reid. I have found it much more difficult in those countries to get a firm opinion as to what a court is likely to say than I have in this country. The real reason for that, of course, is that there is more room for difference of opinion with regard to the words of a Statute, however carefully they may have been framed, than there is in interpreting a line of legal decision moving from precedent to precedent.
I remember one case in my own career where I went to a great many distin 1204 guished counsel (some of them have been sitting around me this afternoon) and was told that there could be only one interpretation of that section, and, armed with that enormously powerful advice, I went forward. The Court of Chancery took exactly the opposite view and did not even call upon the other side. The Court of Appeal unanimously took the same view, and did not call on the other side. And the House of Lords took exactly the same view, and did not call upon the other side. That is the sort of thing you get with codification, I am afraid. That would not have happened if we had been considering some Common Law or equity case, where we were relying on precedent rather than on the particular words of an Act of Parliament.
That brings me to my next point. It is particularly dangerous, I suggest, to start codifying Common Law or equity. I am thankful to say that at no time in the history of the country has the development of the Common Law and equity been more vigorously carried forward by the courts than it has been during my own lifetime and that of many noble Lords whom I see around me here to-day. Both equity and Common Law are living things; both are constantly adapting themselves to the changing circumstances of social conditions and the other conditions of civilisation. They are adapting themselves far more quickly than one could expect to find such adaptation taking place through Acts of Parliament, and the process is much more flexible. Therefore, let us be very discreet in asking this body of Commissioners to substitute for the vital flexible development of the Common Law and equity a code which, on existing form, is not likely to be any more certain in its effect and is bound to be more inflexible than the system we have at present.
I want now to say something about the constitution of the Commission. I see that it is a qualification for appointment that a member should at some time or other have been a solicitor. I do not believe that the Commission can work unless among the members there is at least one person who is a practising solicitor. I say that for this reason. As I said a moment ago, solicitors are the people who are in close touch all the time with the lives and interests of their clients. Barristers come into the matter 1205 only here and there, and in a rather indirect way; and of course the court comes into it only in some cases where there is a question of litigation. Nearly all the legal work in this country is done by solicitors. Very little of it relates to litigation: in only a tiny fraction of cases does legal business ever get into the chambers of counsel. And in a still smaller fraction of cases does it come before the court.
Almost all the legal business of this country, in its multifarious forms, is conducted by solicitors. It is they who know where the shoe pinches; where the interests of the citizens, their clients, are really affected. In these circumstances, it ought to be a sine qua non of this Commission that a practising solicitor, or one who has temporarily given up practising perhaps to do this particular work, should be a member of it. I was very struck, when listening to the noble and learned Lord, Lord Reid, a moment ago, to hear how in almost every sentence he said "When a man goes to his solicitor, he wants this", or "When a man goes to his solicitor, he wants that". That, of course, is what the man does first of all when he comes into contact with the law at all: he goes to see a solicitor.
My last point is this. I am sure that this Commission will produce a good deal of reform in what has been called lawyers' law. I hope that serious consideration will be given to some form of revised Parliamentary procedure for the purpose of giving effect to reforms in lawyers' law. Last Session we considered a charming little Bill called the Accumulations and Perpetuities Bill. The Lord Chancellor felt it necessary—and it was necessary—to spend about half an hour explaining it, and other noble Lords made their contributions. The same process had been gone through in another place. But when one is dealing with a matter like that, in which the only public opinion that is of value is expert legal opinion, a matter which raises no conceivable moral, practical or political considerations, is it necessary to go through the whole stages of a Bill in both Houses of Parliament? Is it not possible to devise some means whereby matters of that kind can be dealt with in such a way that there would be a great economy in Parliamentary time, and in fact much greater ease in finding Parliamentary 1206 time for such a matter? I made this suggestion, in a tentative way, about a year ago. I have since thought about it a good deal, and I hope that it may be considered.
My Lords, I support this Bill strongly. I think there are certain matters which we shall have to consider slightly at a later stage, but I hope that the Commission will come into existence, and I wish them well. I am sure that they will succeed, provided that they are discreet.
§ 6.28 p.m.
VISCOUNT ST. DAVIDS
My Lords, when I was a boy I took a view of the law of England which of recent years, and in fact until to-day, I thought was a juvenile point of view. I now understand that, at any rate until recent years, I shared that point of view with a number of eminent lawyers. I thought that the law of England was very much as it was stated on one occasion by a well-known, if not an eminent, Lord Chancellor, who is reported as saying to a Committee of noble Lords engaged on a matrimonial query thatThe law is the true embodimentOf everything that's excellent,It has no kind of fault or flaw,and ended the statement by saying,And I, my Lords, embody the Law".Of late years my opinion has been entirely different. I have come to the conclusion that that statement might almost, with justice, be rendered into the negative. It is clearly not entirely the embodiment of everything that is excellent. It has large numbers of faults or flaws, and to suggest that the confusions and uncertainties of large areas of our law have any reference to the state of mind of our present Lord Chancellor is so absurd that it is laughable. Nevertheless, things are in a terrible mess in some areas of our law.
I believe that I am the only speaker in this debate who is not a lawyer of any kind—neither judge, barrister, nor solicitor. I do not know much about the major field of the law at large. I rise to my feet because I was particularly asked to do so on the subject of waterways law, in which I have found myself almost literally drowning. When I started looking into the evil state of the affairs of the waterways of this country, 1207 and particularly the state of affairs in relation to nationalised waterways, I discovered that one of the reasons that the British Waterways Board could not get on with their business was that the waterways had taken over some 600 antiquated Acts of Parliament. Two hundred of them were originating Acts, and 400 of them amending Acts.
Although these were Private Acts, they had the peculiarity that they related to rights of way—matters which affect the public to a large extent. They were related not only to the rights of ownership of the waterways; they were related to the whole question of the code of conduct of those who used the waterways, and they attached considerable penalties to various offences which could be committed. I do not say that anybody could actually be hanged for doing anything in particular on a waterway, though I should not be surprised to find such a section still in an extant Act. But, certainly, there are a good many of those Acts, still unrepealed, under which one can be transported for seven years.
These ancient and confusing Acts, which make a complete mess of everything that the Waterways Board wants to do, are not possible to consolidate, because a great many of them completely contradict one another. They are so hopelessly contradictory that, after watching the British Waterways Board for a long time, I concluded that they must be committing at least one legal offence a day—perfectly rightly, in my opinion; I thought they were entirely justified in doing so—simply in order to follow the common sense of the business instead of trying to follow the law.
The recent Transport Act has made things even more confusing. The Ministry of Transport, at the time, tried to make sense of the 600 antiquated Acts, failed to do anything about it in the time—it had not a hope; it was not its fault—and simply got the subsequent Act passed in such a way that it spread its provisions as a kind of thin veneer over the top of all these ancient and nonsensical provisions. But the result is exactly what might have been foreseen. In fact, nobody on the waterways bothers with what the law is. If anything goes wrong, or if anything is done which they do not believe to be legal. I 1208 am sorry to say that they do not consult a solicitor. If a waterway is discovered to be padlocked, and various users of the waterways believe that such should not be the case, they do not go for a good solicitor; I am afraid they go for a good hacksaw and cut the padlock off. It is, at any rate, much cheaper. What is more—
§ LORD TANGLEY
My Lords, does the noble Viscount mean that immediately or ultimately it is much cheaper?
VISCOUNT ST. DAVIDS
My Lords, both immediately and ultimately, for the simple reason that since nobody knows what the law is nobody will bother to prosecute. They may receive a letter saying, "Tut, tut!", but that is really as far as the matter can be carried. I had a rather amusing experience. I believed that the British Waterways Board was doing things to me as a riparian owner on the Regent's Canal which they were not entitled to do under the Regent's Canal Act, 1812. I objected, and the answer of the British Waterways Board was, "Oh, we swept away all that nonsense. We repealed all that." My immediate answer, of course, was, "By what Act of Parliament did you repeal this?" There was then a long and deathly hush, and finally I received a solicitor's letter from the British Waterways Board which, when I had read it twice, amounted to saying, "We are very sorry. We know that you are very fond of the waterways. You know that we know you do not mean us any harm. So will you please pretend that we did repeal that Act, and carry on as if we had?".
I am afraid that, being a rather stubborn person—and it was probably very wrong of me—I simply stood on my legal rights under the Regent's Canal Act, 1812. For all I know, it may well have been repealed; it is quite impossible to discover. But that is the plain fact about those antiquated Acts: nobody can get to the bottom of the matter because they are all completely contradictory. The Board cannot follow any sensible policy without being in breach of several of the Acts at once, and there is really nothing to do but to carry on in that manner. It is far better not to consolidate these Acts. If you are going to try to touch them, you must carry out a complete reform, 1209 because with Acts as contradictory as that there is no hope of doing anything other than by a complete reform.
I have been talking about the 600 Acts from which the British Waterways Board —the nationalised pant of the waterways—suffer. But, of course, if we touched those we should have to touch the Acts relating to the other waterways. The other waterways are mainly much older, and therefore have much more antiquated Acts of Parliament. There is the Private Act under which the Basingstoke Canal does or does not suffer—nobody knows, for the simple reason that the company accidentally became a legal ghost and has ceased to exist. The Act, if it exists, is enforceable only on the ghost of the nonexistent company.
There is the strange case of the River Wey Acts, which start with an Act of Oliver Cromwell, under which the constructor who built the navigation in 1651—Sir Richard Weston—was granted the bed of the river to make a navigation. But, as a matter of fact, he did not make the navigation in the bed of the river at all, and the question now is, to whom, to what or where the Act now applies. Incidentally, the river has since shifted its bed, to add to the confusion. There is the weird state of the River Medway, which is properly equipped with locks, weirs and all modern equipment. But, unfortunately, nobody saw fit to repeal various mediaeval Acts under which all locks and weirs were forbidden. I am not sure whether, if hooligans saw fit to blow up one of the locks, they could not plead, on being charged, that they were removing an illegal obstruction.
Even the River Medway is not so old as some of the others. There is the River Severn, for example, which really suffers from beautiful old Acts. As a matter of fact, there is one of Edward III. It is supposed to control the "wild men of Bewdley", who it seems had the habit of behaving rather rudely. That sounds rather like a limerick, but it is not. The fact was that the "wild men of Bewdley" used to attack shipping proceeding up and down river to other towns, in order to attract trade to themselves. All those Acts are still in existence, though quite what relevance they have to-day I do not know.
These waterways simply crawl with ancient pieces of legislation, practically 1210 none of which apply sensibly to to-day; and, if they do, then, alas! they probably contradict each other. It is amazing that the waterways have survived under their load of legislation. They would have done much better with far less. Indeed, it is a sign of the solidity of the system that it has kept going at all. But it has kept going by neglecting to obey these Acts of Parliament. I am sorry to say this in front of so many legal Lords, but the waterways have survived in spite of their laws, and not because of them.
If you are going to make any changes or any consolidation, whatever you are going to do, it amounts to going through the ancient Acts, discovering what has to be kept—because if you do not, you will legally abolish the waterway—find out what needs to be done, which, thank heavens! is fairly easy (there is a very fair consensus of opinion about that) and producing a complete new code out of the bits and pieces. But if you do not do that, my Lords, if you insist on merely leaving us with our ancient heap of laws, it is much better that they should not be consolidated and that we should be left in decent ignorance of them, so that we can go on doing what we are doing now, which is quietly disobeying them.
So I am altogether in favour of this Bill, because it looks to me as if, in this case at least, we are going to get a body which can put some sense into things. I do not know whether there are any worse cases than this one—I am not a lawyer—but I have a strong suspicion that if this is what goes on in the case of the waterways it probably happens much worse somewhere else. If this is so, then this Bill is, indeed, extremely necessary.
§ 6.41 p.m.
§ LORD DENNING
My Lords, I should like to say just a few words, if I may, in support of this Bill. Each generation has its duty to keep the law in conformity with the needs of the time. Indeed, its function, as I would see it, is first to see that justice is done according to the law. The law should be such that it meets with the approval of the right-thinking members of the community, and only second to that would I put certainty. But certainty, I am 1211 afraid, can rarely be achieved to the degree which we should like, because when you are legislating you cannot foresee the innumerable circumstances which may arise.
My noble friend Lord Silkin drew attention to one or two cases that we have had recently in the Court of Appeal. May I say that they dealt with matters on which certainty is unattainable. There was the case of the blind man who tripped over something in his way, and fell and was injured. That was essentially a matter of fact, and depended on so many different circumstances. Then, on the question of the amount of damages, there was the case of the young woman who was left a widow with a small child on her husbands' death. The question was how to calculate the amount of damages. The principle of law is that you do not award her as much as you would if she were never likely to remarry, and you give her an annuity (as in this case it would be) of £15 a year for life. The law says that you must take into account the probability of remarriage, and the judges have to try to make the best assessment possible. But those are matters on which certainty cannot be achieved.
My Lords, let the law also be simple—and here it seems to me that we must pay due credit to all the great work that has been done already in the way of law reform through legislation in our time, about which we lawyers should know, whether it be the Contributory Negligence Act, the Abolition of Common Employment Act, the Occupiers (Liability) Act. There are a number of Bills that have become Acts on the advice of Law Reform Committees. Certainly great work has already been done in this field, and the judges too have done their part. In both these fields of judicial reform and of legislative reform great work has been done; but we have slipped back in some ways. For instance, the judges have perhaps been too often inclined to say, "We cannot do this unless we can find a precedent for it. We cannot move a step forward unless it has been done before".
Take as an example a recent case in this House—your Lordships may remember it—in which a man had stolen cars and then in order to be able to put them 1212 on his market, had got damaged cars with their log books, had taken the number plates off them and put them on to the stolen cars, and had used the log books for them. The law has been held by this House to be that, in proving such a case against a thief, you cannot bring into play the records of the firm which made the cars which show the engine numbers. There was a gap in the law, in judge-made law, and it was a gap which needed to be filled at once. It was filled, I am glad to say, by a Bill which went immediately through Parliament.
That is one instance of a gap in judge-made law, but in legislation passed by both Houses, too, we continually find gaps in the law—particularly, may I say, in our revenue laws. The whole field of revenue law is simply one of Parliament enacting words in a Statute so as to impose taxes or duties, and of accountants, solicitors and barristers—all of them—finding ways round these words, finding gaps in the Act, so that the provisions do not apply. In this field, too, in legislative reform, as in judicial reform, you continually find gaps in the law which should be filled. It has been done very well in the past, but haphazardly; and the time has come—indeed, it is overdue—when we should have a single, continuous, standing body able to correct matters at once. Let these gaps be referred to them by the judges, as I hope may be the case, saying, "Here we have found a gap in the law. Put it right". Then let it be dealt with within Parliamentary time—say, in an annual Law Reform Bill embracing ten, twenty, thirty or even forty gaps that have been found in the law—and made good in that time.
May I say that, whether it be the waterways or something else, there are endless fields of law in which our Statute Law is complicated beyond measure. I remember a few years ago we had a case about hall-marks. It was very interesting indeed, involving the Assay Office and the hall-marks on silver; but there are about twenty Acts governing our system of hall-marking. It was impossible to understand all of them or to find a way through them, even for us lawyers. But that is only one field. Whether it be waterways or hall-marks, there are endless fields of 1213 law which need to be put in proper order. But you cannot do that with ad hoc committees sitting occasionally. A single body sitting full time can tidy up no end of fields of that kind and fill in the gaps.
I am sure it would be wrong for a Commission of this kind to take over broad questions of policy in the law, which must be the province of Parliament. As regards legislation dealing with the great needs of our-time—one thinks of the emancipation of women, with all the consequent legislation which is necessary; of the changover, for instance, in hire-purchase systems; of legislation involving trade unions, tribunals, inquiries or the Welfare State—all this must be the province of Parliament, must be thoroughly debated here and then brought into law. But, for what I may call the incidentals—the gaps in the law—we can do well by having this Commission.
May I add a word to what my noble and learned friend Lord Wilberforce said? The laws which we make here in England are largely copied throughout our, Commonwealth—our Statute Law in particular. What we do here sets the pattern there. So a Commission like this, through Parliament, will be working, not only for us in this country but for a much wider community. My Lords, I would certainly support this Bill.
§ 6.50 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
My Lords, I should like to join with those of your Lordships who have given a warm welcome to this measure. I have the privilege of being a Member of your Lordships' House in a capacity which makes it inappropriate that I should intervene on occasions when there are divergencies of view which reflect differences in political approach, but I am happy to think that on this occasion I may give my full support for this measure without there being involved any sort of implication that there has been diffidence or indifference on the part of any past Administrations. I do not think there has been. I think zeal has been shown to ensure that our legal machinery works fairly speedily, justly and smoothly. I believe it does. I hope I can say that without any complacency, while recognising that there is a vast field in the law that is to-day in need of renovation.
1214 No big commercial concern these days could fail to falter if it did not revise its plans, renew its plants, modernise and keep its development plans up to date. The law is worthy of equally tender care. I cannot think that it would ever be the wish or intention that matters which depend upon policy or matters which (to use the words of my noble and learned friend Lord Dilhorne) have a political content, should be referred to the Law Commission. There is such a vast field, quite outside that field which depends upon decisions of policy or which has any political content. Much has been done in the last few years and great good will has been shown; but, in my view, the measure of what has been done but serves to show the extent of what there remains to be done.
I give my full support to this measure very much for the reasons that have already been advanced by the noble Lords, Lord Reid and Lord Denning. It is not enough, in my view, to have those agencies that we at present have. They do wonderful and valuable work and I think they will be retained. Some questions arise on which it is right that there should be a Royal Commission and for which a Royal Commission may be admirably suited. Some questions need probing and considering by a Departmental Committee; others may go to the existing Law Reform Committees. But much that has been happening in the past has really been by way of running repairs, and it will be a great advantage if we can have a body of men who, endowed with the capacity, will be able to give their full time to looking at the law in those branches where so many of us feel there is need for much to be done. I will not say more on those aspects of the matter.
There are just two points with which I should wish to deal. One is the question of Parliamentary time. I cannot think that there is here any problem so far as your Lordships' House is concerned; certainly there is no problem that could not well be solved, even if there were a great number of new Bills to be introduced to deal with reform of the law. I envisage that many of those Bills, after the consideration that the Law Commission would have given to the matters with which they deal, would not be really controversial.
1215 There was at one time in your Lordships' House a Standing Committee to which were referred Bills dealing with law, courts and legal procedure. That was a Committee that was set up in the year 1889. It was decided in that year that there should be Standing Committees in your Lordships' House and that Bills were to be referred to those Standing Committees before they came to a Committee of the Whole House. It was provided that there should be four such Standing Committees. In fact, only two were appointed. One was a Standing Committee for General Bills and the other was a Standing Committee for Bills relating to law, courts of justice and legal procedure.
I am not going to deal with the subject of codification and seek to join issue with one or the other of my noble friends, but I saw that in the year 1889 a Bill was introduced in your Lordships' House to deal with the codification of the law of sale of goods. It was introduced by Lord Herschell, and the Lord Chancellor of the day, while not opposing the Bill, said that he doubted whether it was wise to have codification and to have that branch of the law within what he called an "iron framework". However, the Bill received a Second Reading and then went to the Standing Committee on law, courts of justice and legal procedure.
I do not suggest that that procedure would be appropriate to-day; it was not very popular at the time for the reason that many of their Lordships on the stage of Committee of the Whole House found that when they raised points they were told: "Those have been dealt with already by the Standing Committee." The proceedings before the Committee of the Whole House therefore became somewhat formal, and the result was that that Standing Committee lasted for a period of only two years. After 1891 there was only one such Standing Committee and that was for General Bills; and to that Standing Committee a Bill was referred after it had been before a Committee of the Whole House. The result of that was that very few Bills thereafter were referred and the whole procedure came to an end in the year 1910. I mention that only because if there were so many Bills dealing with legal reform that there was any problem. some procedure could easily be devised whereby Bills received the atten 1216 tion of some Committee, even if such a Committee sat only in a consultative capacity, so as to simplify the work when the Bill came before the Whole House.
The only other matter to which I would refer is the question of consolidation. I refer to this because in the last few years I have had the honour of being the Chairman of the Joint Committee on Consolidation Bills. Your Lordships will know that that is a Committee of both Houses. There are eight members from your Lordships' House and eight members from another place, and all the members are lawyers. There are three types of Bill that go before the Committee. There are Statute Law Revision Bills; there are Consolidation Bills under the procedure of the Act of 1949, to which reference has been made, for the consolidation of enactments with amendments; and, thirdly, there are the Bills which deal purely with consolidation.
It is provided in the Bill that it is for the Commission to draw up a programme in regard to consolidation. I think that that would be necessary, for this reason. If it were contemplated by the Commission that they were going to deal with some particular topic or branch of the law and introduce a measure of reform, it would be highly inappropriate if some codification of that branch of the law were taking place. There would have to be very close co-operation between the Law Commission and the Parliamentary draftsmen. Here, from such experience as I can command, having been on the Consolidation Committee, I would express my full concurrence with what the noble and learned Viscount, Lord Dilhorne, said: that the work of Statute Law revision and of consolidation, of whatever kind, must depend upon the supply of skilled Parliamentary draftsmen. It is highly skilled work. The more I have seen of the work of Parliamentary draftsmen, the greater has been my admiration for their ability and their knowledge. I venture to think that no one could embark upon the work of consolidation without having considerable experience of the work and without starting with peculiar legal equipment.
In the last eighteen years, there have been something approaching 100 Acts of Consolidation or of Statute Law revision. The rate, therefore, is about five 1217 or six a year. In the last three years or so—I have looked it up—there have been about that number. I know that a vast programme of consolidation is already contemplated. Any one of us could refer to a variety of subjects where consolidation would be a great advantage. It seems to me that the speed at which consolidation can proceed is dependent entirely upon the skill of the Parliamentary draftsmen.
The Consolidation Committee can do no more than they already do—namely, take the evidence of the draftsman. When we meet, as we do in a Committee Room upstairs, we hear the draftsmen, possibly one from Scotland and one from England, and possibly witnesses from the Department. But the most we can do is to receive their evidence and test it as much as we can. The whole process of our inquiry is to ensure that the law is not being changed, save to the extent that, under the 1949 Act, there may be minor amendments. I think that it is highly necessary to have consolidation, but I do not regard consolidation or Statute Law revision as reform in its true sense. While I believe that it will be valuable for the Law Commission to co-operate closely with Parliamentary Counsel in regard to programmes of consolidation, I doubt whether they can do very much to speed up the process.
I have expressed my admiration for Parliamentary Counsel, an admiration shared by all who have had experience of the Consolidation Committee; but that is not to say that there has not at times been in the courts some criticism of Acts of Parliament. There was a case in the Court of Appeal a short time ago, when my noble and learned friend Lord Denning and Lord Justice Harman had a few words to say. My noble and learned friend Lord Denning said this:I must say that rarely have I come across such a mass of obscurity, even in a Statute. I cannot conceive how any ordinary person can be expected to understand it. So deep is the thicket that, before the Lands Tribunal. both of the very experienced counsel lost their way".Lord Justice Harman said this:To reach a conclusion on this matter involved the court in wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way at each side. I regarded it at one time, I must confess. as a Slough of Despond through which the court would never drag its feet, but I have, 1218 by leaping from tussock to tussock as best I might, eventually, pale and exhausted, reached the other side where I find myself, I am glad to say, at the same same point as that arrived at with more agility by Lord Denning.My admiration for Parliamentary Counsel, sincerely expressed, also makes me recognise that sometimes this work has to be done speedily, and sometimes there are amendments which may upset the course of their first drafting.
In a complex society, I think it quite impossible to have many Statutes in a form that "he who runs may read." I give my warm support to this measure. for the reasons that I have indicated. Those of us who serve the law, venerate the law. It is the structure of the law which we venerate. But, like all structures that are esteemed and cherished, it is in need from time to time of renovations and repairs.
§ 7.8 p.m.
§ THE LORD CHANCELLOR
My Lords, I am most grateful to your Lordships for the warm welcome you have given to this Bill. Every word that noble Lords have said will receive the closest consideration. But I apprehend that at this hour your Lordships will probably not want me to deal other than shortly with the most prominent points that have been raised. I think that the first point which has been raised by many noble Lords is whether the Commission are going to deal with lawyers' law reform or with political law reform. I have no doubt that they will deal with lawyers' law reform, subject only to this, that while we all know that there is a thing called lawyers' law, and that there are subjects which are purely political, there are also subjects which are of a mixed character. After all, we have had some experience of this matter. A Law Commission is not some brilliant brain-child of mine.
I have here a photostat of a letter, the original of which is in the Public Record Office, which was written by my distinguished predecessor Lord Cranworth on February 28, 1853, to the Chancellor of the Exchequer suggesting the appointment of five law commissioners. The place they were to inhabit for their labours was part of 28 Abingdon Street, which might be of interest to noble Lords on the Liberal benches. Nearly every other Western country except ours has 1219 for years had either a law commission or a law reform section of their department of law. This is so in the Scandinavian countries; it is so in Germany and in France. India, as I have said, has its law commission. Several States in the United States also have law commissions. There has been a New York Law Commission for about twenty years. There has always been a question as to how far such bodies would look at that which is political. The experience of all these bodies, and certainly of the New York Law Commission, is that if anything they lean over backwards in order not to get involved in anything political. I am sure that our Law Commission would regard their subject with that discretion which the noble Lord, Lord Tangley, urged.
Then the question was asked whether the Law Reform Committee would be retained. I should like, in the first place, to emphasise again what I said before as to the valuable work done by all these voluntary committees. I did not like to say too much about it, because I have been on so many of them myself. But I would respectfully agree that a great amount of time has been given up by lawyers voluntarily, in their spare time, to devote to law reform. Even at the present time there are, I think I am right in saying, no fewer than 31 judges who are sitting on committees of one kind or another, gratuitously and in their spare time. The noble and learned Viscount, Lord Simonds, said, I think, that he had been a member of a committee which had had fifty meetings. I may say that I attended 330 meetings of the committee of which I previously spoke, of which I was a member and the chairman was the noble and learned Lord, Lord Ever-shed. So I am the last person not to appreciate how much work has been done by so many people in this field, while at the same time agreeing with those of your Lordships who said that some body of a more permanent nature is now necessary.
As to whether to keep the Law Reform Committee, this is a Lord Chancellor's Committee and of course it would be for him to decide. I should desire first to take the advice of the Law Commission; but I should think it wildly unlikely that the Law Commission would 1220 not wish them to remain. After all, the Law Commission, in the first instance, is a planning body. There is so much to be done that neither they nor their staff can possibly do it all. They will want every facility they can get. I should have no doubt that they will desire the Law Reform Committee to remain in being. Indeed, I think they will have to go further, and will either have to have other such committees appointed, too, or have to bring in research committees of the law schools at the universities, because there is so much to do.
I was asked about the Statute Law Revision Committee. This also, of course, is a matter for consideration. There, again, they have done most admirable work. It is a committee which I think usually meets only once a year: the principal Parliamentary draftsman makes proposals as to what should be consolidated in the next year, and they usually agree with his suggestions. But I agree with the noble and learned Lord, Lord Morris of Borth-y-Gest, that it would be desirable that the Law Commission should, so to speak, be in charge of the general outline plan, not only for the reasons he gave, but also because if one is really going to try to consolidate the Statute Book in a certain number of years one would want to see how long it would take. In other words, there has to be a plan. One could make it a five-year programme or whatever it may be. It depends a good deal on how many Parliamentary draftsmen there are. It is essential, of course, if we are to proceed at all seriously with Statute law consolidation, that there should be a considerable increase in the number of Parliamentary draftsmen.
The question of Parliamentary time was raised again, and we had a most interesting review from the noble Lord, Lord Morris of Borth-y-Gest, of what had happened in your Lordships' House in relation to Standing Committees. I think it is agreed that there is really no difficulty in this House about Parliamentary time. It is in the other place that there is difficulty. There, as I have said, the Procedure Committee are considering what procedure should be altered to allow for more law reform Bills; and I think they may be considering a committee of the type of the Scottish Grand Committee, which, of course, saves a 1221 good deal of time. I think, if I may say so, that what was said on this point by the noble Viscount, Lord Simonds, was probably much truer than anything I said, and he was right in saying that if a Government are paying for a Commission they are much more likely to see that its work comes to fruition than otherwise.
We were all particularly interested to hear the noble and learned Lord, Lord Wilberforce, for the first time in this House, and I am sure we shall all look forward to hearing from him again. I very much agreed, if I may say so, with the noble Lord when he said it would be a great mistake to expect miracles. We did, I think, in the White Paper put in a cautionary note to that effect. The law of England will not be put into proper working order in five years or, probably, in ten years; and I am sure the noble Lord was right in reminding us of the scope of what has to be done and of how mistaken it would be to raise false impressions. I was very interested, too, in what he said with regard to the technique of drafting. This is a paint of some delicacy, and I should not wish to say more about it this evening.
Then some point was made with regard to the word "assistance" in the Bill, and it was said that "advice" would have been all right: but is it right that someone who is a Judge should be assisting a Government Department? In the first place, I am quite sure it is essential that, if possible, the chairman of the Commission should be a Judge. We shall not get a Judge if he has to resign from the Bench. He would, in my view, be all the better a Judge if, after some years of being chairman of the Law Commission and looking at the whole of the law in the round, he then returned to the Bench. I would suggest that there is no difficulty about his judicial office. On the contrary, it is part of the writ which every Judge receives that he is to advise the Crown on matters of law, as he has always done The only reason why the word "assistance" was used instead of "advice" was that it may be that some Department of Government will want information rather than advice. It may be even part of the Commission's own programme that a particular reform should be carried out by a Government Department, and the Department may be getting on with it, but they may want some information as 1222 to comparative law, for example. It is difficult to say that this is giving them advice. It is giving them assistance, and it is only that kind of circumstance that the word was intended to cover.
The noble and learned Viscount, Lord Dilhorne, raised one or two questions as to the qualifications of the Commission. I would suggest for his consideration that it is extremely desirable that the Lord Chancellor (I am not thinking of myself, but Lord Chancellors in future) should be as free as possible to appoint the men who he thinks are the best men at the time. The noble Viscount suggested, for example, that so many should be men who at the time of their appointment were practising in the administration of the law. Of course, as soon as you start to tie somebody's hands in that way, then if you have a leading member of the Bar retiring, young, the day before he retires he can be a Law Commissioner, and the day after he retires he cannot. I suggest there is everything to be said for leaving that in as fluid a form as possible.
The noble Lord, Lord Silkin, discussed damages cases. I am sure we all feel that in many respects there are questions which require consideration in that field. The noble and learned Viscount, Lord Simonds, raised points which I think I have covered.
I am going to be extremely cowardly in replying to questions which have been raised about the law of Scotland. I can only say that I will see that the suggestions made by the noble Earl, Lord Selkirk, and also by the noble and learned Lord, Lord Reid, are given every consideration. The noble Earl, Lord Selkirk, took the view that it was right that the person corresponding to the Lord Chancellor should in Scotland be both Secretary of State and the Lord Advocate. The noble and learned Lord, Lord Reid, was, I think, less happy about that. There are, of course, many precedents for appointments being made by Ministers jointly, and I rather think—though I speak with some hesitation on this point—that one must have a Minister, because many of the functions of the Lord Chancellor have to be repeated in relation to Scotland. On the other hand, this is the sort of matter in which the Minister would normally take the 1223 advice of the Lord Advocate. Therefore, on the whole, the simplest and most practical thing was that they should be taken together, as they in fact have been.
The noble and learned Lord, Lord Reid, also suggested that the proposals should be published before any Bill is introduced. I apprehend that the public would know what was happening earlier than that—when, first of all, a five-year programme is published so that everybody can see what is being considered. Also, I apprehend that the Commission themselves would communicate with sections of the public who are particularly concerned, and I should hope that they would come in at that stage.
I think I have dealt with the main points raised by the noble Lord, Lord Tangley. I am sure we were all pleased that the debate did not close until we had had a speech from one layman, namely, the noble Viscount, Lord St. Davids, with his entertaining account of the state of the law from a layman's point of view. I was grateful to the noble and learned Lord, Lord Denning, for what he said as to the need for a Law Commission; and I think I have already replied to the points raised by the noble Lord, Lord Morris of Borthy-Gest. May I again say that every word which has been spoken will receive the most careful consideration. It has been of great advantage that your Lordships should have been here to give the House the benefit of your experienced views, and I thank your Lordships again for the welcome which has been given to the Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.