§ 3.37 p.m.
§ Order of the Day for the House to be again in Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1 [The Law Commission]:517
§ On Question, Whether Clause 1, as amended, shall stand part of the Bill?
§ VISCOUNT DILHORNE
Since we were last in Committee on this Bill I have had an opportunity of considering the arguments put forward by the noble and learned Lord the Lord Chancellor in resisting the first Amendment which I moved to the Bill. Your Lordships may remember that it was designed to secure that the Law Commission for England and Wales should consist of five persons. That was what was stated in the White Paper and that, the noble Lord said, was the intention of the Government. The Amendment was thus designed to bring the Bill into line with the clear Government policy.
I do not want to start the debate on that Amendment again now but I do want to draw certain matters to the attention of the noble and learned Lord so that he may have an ample opportunity of considering them before we get to the later stages of the Bill. I must confess that I was surprised when he thought fit to describe the Amendment as "a hopeless one". I do not think there was really any justification for that and I drew attention at the time to the Coal Industry Nationalisation Act, Section 2(2), which says that the Boardshall consist of a chairman and eight other members".Since that debate I have looked at the other nationalisation Acts. The Electricity Act, 1947, by Section 3(2) says that the Central Authority is to consist of: (1) a chairman and not less than four or more than six other members appointed by the Minister; (2) four other members appointed by the Minister who are chairmen of the Area Boards; (3) one other person who shall be the chairman of the North of Scotland Board. The Gas Act, 1948, also lays down how the Gas Council and the Area Boards are to be composed. I cannot find in any of those Acts, passed in the time of the last Socialist Administration, any provision for what is to happen in the event of death or retirement of one of the persons who is to be on the Board. Take, for instance, the Coal Industry Nationalisation Act. I cannot find in that Act any provision saying what is to happen if the chairman or one of the other eight members suddenly dies 518 or retires. Yet the noble and learned Lord has described the Amendment proposed to this Bill, which is in line with the provision in the Coal Industry Nationalisation Act, as a hopeless Amendment as it does not make provision for what is to happen in the event of the death or retirement of one of the five members.
The answer may be that in the case of these bodies such a provision is unnecessary as the Boards are made bodies corporate. If that is the answer, is there any reason why the Law Commission should not itself be made a body corporate? I am not sure that this is the answer, but there is an interesting proviso to Section 3(2) of the Electricity Act. It provides thatuntil the Area Boards have been established, the Central Authority shall be deemed to be properly constituted notwithstanding that the members to be appointedfrom the Area Boardshave not been appointed or have not all been appointed.Could not a proviso on somewhat similar lines secure that the Law Commission shall be deemed to be properly constituted notwithstanding the death or retirement of one of its members for, say, a period of six months? That would give the Lord Chancellor ample time within which to find and to appoint a successor.
The noble and learned Lord asserted that it is usual to provide for not more than a certain number. I agree that it is usual to provide a maximum number, but it is also, I think, usual to provide a minimum number for those bodies which have been constituted by Act of Parliament. That was done in both the Electricity Act and the Gas Act. It was also done in the Tribunals and Inquiries Act, 1958, in relation to the Council on Tribunals. This Bill is unusual in not prescribing a minimum number and I should be interested to know what precedents there are for merely stipulating a maximum.
I should be grateful, too, if the noble and learned Lord would state precisely what is to be the position of the Law Commissioners. Are they to be regarded, apart from the holder of high judicial office, as temporary civil servants? If 519 not, what exactly is their position? Presumably the Law Commission will be part of the public service. Then, again, to whom are the Law Commissions to be responsible? Is it to the noble and learned Lord the Lord Chancellor? I think it is important to know this. Who is going to answer questions in either House as to their activities? The Commissions are, as the Bill now stands, under a duty to consider any proposals for law reform that may be sent to them. If a question is asked as to whether the Commission have considered a particular proposal which has been sent to them by some body or another, who is the Minister responsible for answering, or is it the fact that there will be no Minister responsible for answering? Is it the case that, once appointed and their programme approved, the Law Commissioners are going to be left to their own devices and be entirely independent?
The Bill gives no power, once the programme has been approved, to give the Law Commissioners any directions. The noble and learned Lord has said a great deal about not tying his hands or those of his successors, but if there is no power to give the Commission directions it would seem that the Lord Chancellor is saddling his successors, whoever they may be, with a Law Commission consisting of one Judge and four Left-Wing Commissioners. Whether the Commissioners whom he proposes to appoint be regarded as a High Court Judge, a practising barrister and three Leftish dons, as the noble Lord, Lord Tangley, suggested, or as having two practising barristers and two Leftish dons, the fact remains that the practising barristers and the dons are all Left Wing. It is no answer for the noble and learned Lord to say that only one of them is a member of the Society of Labour Lawyers. I must say that I think it a very great mistake to appoint this body with this particular bias. It should be a balanced body, and it clearly is not going to be. In passing, I should like to correct one point. I think that the noble and learned Lord was wrong in thinking that any personal attack was made on any individual. The criticism was, and is, that he should think fit to appoint four Left-Wing Commissioners.
520 There are two other matters which I want to mention. The noble and learned Lord seemed to think it wrong that in this House Amendments should be tabled and discussed after they had already been discussed in another place. It is not the case that all the Amendments which we have so far discussed have been debated in another place, but even if it were the case surely it is perfectly in order to raise the matter here. Governments have been known to change their minds, and it is hoped that this Government will on occasions do so. The function of this House is not simply, as the noble and learned Lord suggested, to observe things that have been missed in another place. The noble and learned Lord went on to say:of course the noble and learned Viscount"—that was a reference to me—knows quite well that I am not at liberty to accept this Amendment because the whole thing has been fully argued in another place".—[OFFICIAL REPORT, Vol. 265 (No. 65), col. 451, April 14, 1965.]I really do not know what the noble and learned Lord meant by that. This is his Bill and he is in charge of it. Is he really saying that he cannot accept any Amendment to it? If so, it is rather an astonishing situation. I would tell him straight away that I certainly do not know "quite well" why he is not at liberty to accept Amendments—I cannot think why he should not be free to do so—designed to improve the Bill. But if his hands are in fact tied and he cannot do so, I hope that he will make that clear now.
At some stage I shall want to inquire into the relationship—because I think it is very important—between the Law Commissions the Government Departments, the Law Reform Committees and the Statute Law Committee, but it will probably be more convenient to raise that question when we come to debate whether Clause 3 shall stand part of the Bill, when we have discussed and considered the duties which the Law Commissions will be required to discharge. I have asked the noble and learned Lord a number of questions, and I hope that he will be in a position to answer them. I am not asking them in any hostile fashion. I am asking them 521 because we really do require information about this Law Commission and how it is intended to operate, and I think that these questions upon which I have sought information are indeed relevant.
§ VISCOUNT SIMONDS
May I intervene for one moment before the noble and learned Lord the Lord Chancellor replies to the noble and learned Viscount? I do so in order to put one matter right. Your Lordships may remember that at the earlier stage of this Committee I moved an Amendment which as amended was carried, and which provided that the term of appointment of a Commissioner should be not more than three years. The noble and learned Lord the Lord Chancellor, while rejecting the idea of any set term, said that if there was to be one he thought five years was the proper term. The noble Earl, Lord Swinton, who has had a far greater experience of administration than I, than the noble and learned Lord, or indeed than anybody else in this House, also thought that five years was a proper term, and not three. The noble Lord, Lord Tangley, who spoke to me afterwards was also emphatic that three years was not enough and five years was a better term. In these circumstances I am very willing to bow to authority and accordingly I propose to put the matter right by moving on Report that the term should be five years, and not three. Perhaps I may say at once to the noble and learned Lord the Lord Chancellor that if he would rather move that Amendment I shall be very glad to let him do so. Perhaps he will communicate with me upon that point.
§ 3.50 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
I do not imagine that the Committee will want me to start the Clause 1 discussion all over again. It was never my wish that this Bill should become a matter of Party political discussion. I had hopes at one time that a Conservative Government might take up the idea of a Law Commission themselves, but I was unable to persuade them to do so; it formed a part of the Labour Party's programme at the Election, and so to that extent it has become political. But the question we are discussing is not really something which ought to be the 522 subject-matter of Party politics. It is really a machine to ensure that the whole of our law is systematically submitted to review and that the defects in it are put right.
I do not for a moment accept the description which the noble and learned Viscount, Lord Dilhorne, has given of the political views of those who were "tipped" in a newspaper as Law Commissioners. Two of them I think I have come across casually only two or three times in my life. The one whom I have known for a great many years is Mr. Norman Marsh, at present the Director of the British Institute of International and Comparative Law. In all the years I have known him it has never occurred to me to ask him what his Party political views were, and I do not know, but I should be prepared to bet quite strongly that he is not in fact a member of any political Party at all.
If I may say so without offence, there is, I think, one thing which Conservatives do not know. Of course, I have been a Conservative. I was brought up in an ordinary Conservative household, and it was not until we had had, I think, an average of two million unemployed for something like ten years that, in the middle of the 1930s, I joined the Labour Party. We were an ordinary Conservative household. I remember as a boy—this must have been just before the First World War—getting into considerable trouble with my father because he asked me who I thought was the greatest living Englishman, and I said, "Winston Churchill"—which, of course, as he was a Liberal, was not at all a popular answer.
But when you have a professional body doing a professional job of work, they do not play Party politics. I have been for eleven years a member of the Law Reform Committee. There is no Member of your Lordships' House for whom I have a greater regard or, if I may say so, affection than the noble and learned Viscount, Lord Simonds. We all know his great contributions to English law. But when he suggested it might be awkward for a Conservative Lord Chancellor to have to speak to somebody who had been appointed by a Labour Government, I must say it surprised me very much, because, if that is so, I must be having an absolutely ghastly time, because everybody I deal with has been appointed by 523 a Conservative Government. But, in discussing professional matters, surely we do not divide on those lines. I have, of course, to discuss the affairs of the Probate, Divorce and Admiralty Division with the learned President, a former associate of the noble and learned Viscount, Lord Dilhorne, as a Conservative Law Officer, but that has never formed any barrier of any kind. After all, we have known each other since we were unknown junior counsel, being both very much concerned with the liberty of the subject and trying to get a Council on Tribunals established.
On the Law Reform Committee, I have no doubt, though I have never asked them, that about 90 per cent. were Conservatives. That may have meant that they were rather more disposed to a lesser measure of reform than I should have been; but they did not play Party politics or think for one moment of Party political matters. The fact is that when professional men get together doing a professional job of work, that is so. If it had been otherwise I should not have been twice elected as Chairman of the Bar Council by a predominantly Conservative Bar, because professional men, in those circumstances, are, of course, men of integrity. I did not go round saying, "Look at this Law Reform Committee. Look how 'Rightish' it is. How can this command the confidence of the public when 90 per cent. of them are Conservatives?" The thing which I think Conservatives do not know is how very much other people resent the Conservative assumption that, while they are men of integrity, those who belong to other political Parties are not.
As I said on Second Reading, I was sure this Law Commission would be found to lean over backwards not to be Party political. It is perfectly plain to anybody that, if they are to perform a useful function, they must not be Party political. So, for that matter, would it of course be fatal for the Law Reform Committee and the Criminal Law Revision Committee to play Party politics? But they do not: they are men of integrity. I would ask the noble and learned Viscount to drop now this Party political stuff and to try to assume, just for a moment, that those professional men who may differ from him politically are 524 just as much men of integrity as are Conservatives.
Now on the points to which he has referred, first of all as to there being five, or not more than five, Law Commissioners in the Bill, I think, with great respect, that he is inaccurate in his view of the nationalisation Acts. It is quite true that the Coal Industry Nationalisation Act, 1946, prescribed the number of Board members; but the regulations which were made in the same year under Section 2(7) dealt with the difficulty of casual vacancy by providing that the National Coal Board should have power to act notwithstanding a vacancy among its members. All I was pointing out was that the Amendment which was proposed was clearly wrong in itself unless it was going to add some words to that effect. But the Coal Act of 1946 was itself brought into line in 1949 with the other nationalisation Acts—Electricity, Gas and Transport—by providing that the Board was to consist of a chairman and not less than x nor more than y other members. A corresponding provision is made with regard to the Monopolies Commission, and the Council on Tribunals. The Restrictive Trade Practices Act, 1956, provides for there being not more than ten lay members of the Restrictive Practices Court. So it is not unusual to provide for not more than so many, as in this Bill; or, alternatively, for not less than x nor more than y.
As I told the Committee before, I have no personal interest in this matter because I gave an undertaking that I proposed to appoint five. I see no objection to a provision that there should be not less than three nor more than five. Obviously, there ought not to be less than three. The only point I was concerned about was that, while I certainly think there ought to be five for a considerable time, it seemed to me that the day might come when so much of our law should have been got right that the Lord Chancellor would say, "I think the business can now really be finished with three", and it is always unfortunate, I think, if one has to come back to Parliament to get a Statute altered. But, personally, I should have no objection to a provision that there should be not less than three nor more than five.
There is another Amendment which I said I would consider and which I think 525 is well founded—I do not think in form, but the substance of it, I consider, is right. This was to omit the word "high" from the words, "high judicial office", because, it was said, this would prevent a county court judge or a stipendiary magistrate from being appointed and retaining his office. As I told the Committee, I had not really considered it. I thought of the Law Commissioners as being of a somewhat higher status; but I have said all through that the thing to do is to keep the matter fluid so that the Lord Chancellor of the day can decide: and if the Lord Chancellor at some time thinks that a metropolitan magistrate or a member of the minor judiciary would make a suitable Law Commissioner, who am I to say that he should not?
The two barristers who were mentioned in the article to which the noble and learned Viscount, Lord Dilhorne, referred are in fact earning, between them, four times as much as a High Court Judge. They are both men, that is to say, who, if they were to accept the position of a Law Commissioner, would be temporarily reducing their living standards to about half; and that is the sort of standard at which I had aimed. But I should have no objection to providing for this, although I think it will want a good deal of consideration by the Parliamentary draftsmen, because whereas the intention is to appoint in England either whole-time Commissioners or practically whole-time Commissioners, my right honourable friend the Secretary of State for Scotland is of the opinion that it would probably be impossible to find five men of the requisite quality whole-time for Scotland, and some of his Commissioners will have to be whole-time and some part-time. I am incapable of explaining to the Committee who are all the minor Judiciary in Scotland, but my noble friend Lord Hughes can do so. So if one is going to have part-time Commissioners as well, the complications of working out which are the part-time positions they are to be entitled to retain may need a good deal of consideration.
On the point raised by the noble and learned Viscount, Lord Simonds, as to whether the period should be for not more than three years, my own calculation is that that Amendment, which was carried by four votes, has reduced the 526 total possible number of Law Commissioners in England and Wales by about a half. In the case of any academic member—say, somebody occupying a Chair of Law at a university or a position such as the Director of the Institute of International Comparative Law (of which, in the absence of law institutes as in America, there are very few such positions in this country)—if he became a Law Commissioner he would have to resign those posts because they would have to be filled. It would be unreasonable to expect anybody, if he has a wife and has children to educate, to do that and to take a position as a Law Commissioner with as little security as three years. Why should he? I would agree with the noble Viscount that three years was too short a period.
§ VISCOUNT SIMONDS
I think the noble and learned Lord could not have heard me. I said that I was giving up the three years. We need not debate it any more.
§ THE LORD CHANCELLOR
It is an unusual position to me to find a very strenuous debate, carried to the length of a Division and a decision taken in favour of an Amendment which everybody now agrees cannot stand.
§ THE EARL OF SWINTON
With great respect, having taken some part in it, may I intervene? As I said at the time, in supporting the Amendment, I thought that five years was right but that certain other things were wrong. We divided on the principle of whether there should be a statutory time limit. It was that that the noble and learned Lord, the Lord Chancellor, who has been so charmingly and persuasively irrelevant now, refused to accept. If the Lord Chancellor had said then that he would accept five years as a statutory limit, then, of course, the Committee would not have dreamt of dividing. It was because the Lord Chancellor, on a Bill where we were all trying to support him, was so determined to have his own way and not to listen to any arguments from any quarter that we were forced to divide on the principle of whether there should be a statutory limit or not.
§ THE LORD CHANCELLOR
Then that is my ignorance. I thought we were voting on the Amendment. I am 527 prepared to have a limit. I have said that I do not propose to appoint anybody for more than five years. I am not thinking of myself but of future Lord Chancellors. I think there ought to be a limit. If noble Lords who agree now that three years is too short would be good enough to consider what they really think is the right period, then I shall no doubt be able to accept it. I say that because the noble and learned Viscount referred to Lord Tangley's Amendment. I have had a letter from him saying that he thinks now that seven years is the right period.
§ VISCOUNT SIMONDS
He has changed his mind since I spoke to him. I do not think we need dispute this any more. I propose to move on the Report stage that "five years" should be substituted for "three years".
§ THE LORD CHANCELLOR
If noble Lords are all agreed, including the noble Lord, Lord Tangley, then I shall be happy to accept it.
§ VISCOUNT DILHORNE
I should like to thank the noble and learned Lord the Lord Chancellor for what he has said. I think the original suggestion of five years was made by me, in the course of my Second Reading speech. I shall be content to thank the noble Lord for accepting that proposal.
May I now say a few words in reply to the noble and learned Lord? I would make it clear that nothing I have said has sought to cast any reflection on the integrity or ability of the persons named. I have made no suggestions of that kind at all. I know some of them as well, perhaps, as does the noble and learned Lord. I know their political outlooks. The point is one that I do not think the noble and learned Lord has fully appreciated—I will not pursue it. But when you are having regard to a bench of magistrates then the noble and learned Lord—as, indeed, his predecessors have done—would always seek, in appointing people with some political views to try to get a political balance. That has been the policy for some time. We are not talking about the political views of one individual or another.
The noble and learned Lord may disagree with this, but if it is right (and I 528 hope it is not) to say that all these four Commissioners are of the same political outlook—and that was not denied by the noble and learned Lord on the Committee stage when I quoted this article—it would be a great mistake. That is all I have said. I hope the noble and learned Lord will not seek to imply—he may not have intended it—that I was seeking to cast any aspersions on these gentlemen's integrity. That has not been my wish throughout.
I am grateful to the noble and learned Lord for what he has said about the limit on the number of Commissioners. I considered the question of putting down an Amendment saying there should be not less than three nor more than five. I did not put it down for this reason. If this body is to undertake the task of reviewing all the law of England, it is going to be a very long task. I think the noble and learned Lord recognises that. I cannot conceive of a body being suitable for that task which has less than five members, because you want to have the body representative of all the different aspects of the legal profession. I think there should be on it, if possible, some experienced practising solicitor, or one who has engaged in practice, some academic lawyers and perhaps some representatives from both sides of the Bar. I cannot conceive of this body working satisfactorily with so small a number as three. That is why I did not put down that form of Amendment. Perhaps the noble and learned Lord and I might have a few words together to see whether the other form to which he drew my attention, and at which I had not looked—the regulations under the Coal Act—might not get over the difficulties to which he referred.
I am grateful to the noble and learned Lord for what he said about the Amendment omitting the word "high" in dealing with judicial offices. I think that will be an improvement. It may require a consequential Amendment which the noble and learned Lord did not mention: namely, an Amendment to secure that, supposing someone is appointed to the Commission who is in a judicial office enjoying a salary which is lower than the salary a Commissioner will get, some provision will be made that while he is acting as a Commissioner his salary 529 should be increased by paying him the difference between the salary of his judicial office and that of a Commissioner. I do not think there is any controversy about that. I am glad indeed that the noble and learned Lord the Lord Chancellor has taken this view and I express my thanks to him for it.
§ THE LORD CHANCELLOR
May I add two things? I should not greatly like to see the figure "three" in the Bill because I think there ought to be the figure "five", at any rate, for a long time to come. Perhaps we could consider that point together. I should have added that the number of years for which they can be appointed should, of course, be without prejudice to the power of reappointment.
§ Clause 1, as amended, agreed to.
§ Clause 2:
§ The Scottish Law Commission
§ 2.—(1) For the purpose of promoting the reform of the law of Scotland, there shall be constituted in accordance with this section a body of Commissioners, to be known as the Scottish Law Commission, consisting of a Chairman and not more than four other Commissioners appointed by the Secretary of State and the Lord Advocate.
§ 4.10 p.m.
THE EARL OF SELKIRK
moved, in subsection (1), to leave out "the Secretary of State and". The noble Earl said: We now come to a point where the Bill, drawn up for application to England, is applied to Scotland. A great many of the arguments which we have had would apply in different ways to this clause, but I do not propose to go over them. There is one general point that I would put to the nobleLord, Lord Hughes, who is going to reply. In Clause 2, it is necessary to find someone in Scotland who will fulfil the role of the Lord Chancellor for the purposes of Clause 1. This is very difficult because in Scotland there is nobody who remotely fulfils that office. As I said on Second Reading, the Secretary of State for Scotland, the Lord President and the Lord Advocate, rolled into one, might represent the Lord Chancellor to some extent. And I am not sure that what I propose will meet this point.
I should like to put to the noble Lord the position as I see it. In Clause 1 a great deal of emphasis is placed on the 530 trust and confidence which necessarily must be reposed in the Lord Chancellor, but in the application of the provisions to Scotland no trust or confidence is reposed in anybody. In Clause 2 the Secretary of State does not trust the Lord Advocate to make appointments; they have to make them together. The Secretary of State does not trust the Lord Advocate to approve the programmes of the Commission; it has to be done jointly. When it comes to deciding salaries, the Treasurydoes not trust the Secretary of State; they both have to do it. Again, in appointing staff, we find that the Treasury does not trust the Secretary of State and this has to be done jointly.
A great deal of the work of the Commission is necessarily confidential between whoever is in charge and the Commission itself. I think that the Secretary of State is not the right person to make the appointments under Clause 2(2). He is called on to deal with purely professional qualifications, and I think that the noble Lord must explain why the Lord Advocate is not making these appointments. The noble Lord may say that obviously the Secretary of State will need to consult with the Lord Advocate; but what other advice is the Secretary of State to take except that of the Lord Advocate, on matters of legal qualification, whether advocate, solicitor or teacher of law? Is it the fact that in this case the responsibility for the state of Scottish law is being switched from the Lord Advocate to the Secretary of State? Is that the intention behind this provision in the Bill? Is it the case that the Lord Advocate's Committee is being abolished? If it had been the Secretary of State's Committee, would it have been retained? I notice that a former Secretary of State for Scotland said in another place that the Secretary of State acts very largely in the same capacity as the Lord Chancellor. I really do not think that that is true. And I notice that the noble and learned Lord the Lord Chancellor said just now that in this Bill the decision lies with the Secretary of State.
Who is going to be responsible for the Law Commission in Scotland—the Secretary of State or the Lord Advocate? We have been told that in England the last word will lie with the Lord Chancellor. Who is going to have the last word in Scotland? Or is it to be a duality? Who 531 is going to answer Questions in Parliament? And who is going to appoint the staff? I understand that draftsmen normally go into the Lord Advocate's staff, and I expect that a great part of the staff of the new Commission will be draftsmen. Either we should have a separate staff, or it would more properly come under the Lord Advocate.
Can the noble Lord deny absolutely that there is a transfer of some of the basic historical responsibility of the Lord Advocate to watch over the development of the law in Scotland, to the Secretary of State's Office, or is there no such intention at all? Is it merely a matter of convenience that the Secretary of State, has been brought into this in this prominent way? I think that on no previous occasion has the Secretary of State been given such a prominent part in the responsibility for maintaining the law of Scotland. For these reasons this Amendment suggests that the appointment of the Commission, which is essentially a professional matter, should rest with the Lord Advocate. I cannot see why the Secretary of State should be brought into a matter of professional judgment. I should like to hear the noble Lord's argument on this before deciding whether it is necessary to carry this further. I really think that if there is a conscious effort to draw this responsibility away from the Lord Advocate's office to that of the Secretary of State for Scotland, it needs some explanation. I beg to move.
Page 2, line 5, leave out from ("by") to ("the") in line 6.—(The Earl of Selkirk.)
§ 4.17 p.m.
§ LORD HUGHES
I propose to ask your Lordships not to accept this Amendment. I hope that what I will have to say on the subject will allay the fears which have just been expressed by the noble Earl, Lord Selkirk. I would say quite definitely that I can give him the assurance for which he asks, that there is no intention in these proposals of altering the practice which exists. And I would draw your Lordships' attention to the fact that the noble Earl is in error in his statement of what the position is at the present time.
There have been very infrequent references in the past to the functions of the 532 Lord Advocate. It is commonly stated that the responsibility will be that of the Secretary of State. For example, the higher judicial appointments, the appointing of Her Majesty's Judges, with the exception of the two senior appointments of Lord President and Lord Justice-Clerk, are made by the Crown on the recommendation of the Secretary of State. Everyone who has been associated with the Scottish Office knows that the Secretary of State makes his recommendation after consultation with the Lord Advocate. But nowhere in the law is it written down that the Secretary of State is required to consult the Lord Advocate on this purpose. It is done because the Scottish Office is organised on reasonable lines and works on the principle of: "Don't keep a dog and do your own barking!"
The position of the Lord Advocate is, in fact, improved in this Bill, because for the first time it is laid down statutorily that the Secretary of State and the Lord Advocate are to act jointly. The Bill puts on record, in relation to a particular set of legal appointments, something which has been the practice over many years, and it may well be that the present and future Lord Advocates will hope that what has been done in this Bill will prove to be the pattern for the future. But it is only a change of wording in a Bill, and does not mean any change of practice.
In so far as there is any objection to joint appointments, there are ample precedents for this in almost every Department of Government. No Minister is more frequently involved in joint appointments than the Secretary of State for Scotland. If I may, I will give your Lordships a few examples. He acts jointly in certain legal capacities with my noble and learned friend the Lord Chancellor, so that on these issues he carries out in Scotland the functions which in England are exercised solely by the Lord Chancellor. He acts jointly with the Minister of Agriculture; he acts jointly with the Home Secretary; he acts jointly with the Minister of Health; he acts jointly with the Minister of Health and a Minister in the Northern Ireland Government; he acts jointly with the Minister of Health, the Minister of Aviation, the Home Secretary, and a Minister in the Northern Ireland Government.
533 So there is ample precedent for joint appointments, and there is ample evidence that there is no difficulty in these joint appointments in exercising what is the theory of Government in this country: that decisions are decisions of the Government as a whole, and not of individual members of the Government. So that in this smaller category, having two, three or even four members of Government acting together is no barrier to good decisions, and certainly has in no way prevented agreed decisions from being reached. I hope that I have said sufficient to reassure your Lordships that the position of the Lord Advocate in Scotland is in no way being diminished, and that the position of the Secretary of State is in no way being extended, but that we are, in fact, in the Bill giving word to what is at present the actual position.
§ LORD DRUMALBYN
The noble Lord has made the strongest case he can joint appointment and has cited a number of cases in which appointments are made jointly by a Scottish Minister and an English Minister, and sometimes, also, an Irish Minister. But this is not what we are considering here. We are considering an appointment made jointly by two Scottish Ministers. As he rightly said, this is the first time it has been done, and it needs a considerable amount of justification. The only justification given in another place was that this is a compromise arrangement.
It is true that in many cases appointments are made by the Secretary of State in Scotland on the recommendation of the Lord Advocate. Sometimes, I think, the gentleman called the accountant of the quarter session is appointed on the nomination of the Lord Advocate. But the idea of joint appointments has never arisen, and has never been thought of arising, simply because the reason for joint appointments is that often there are conflicting territorial interests. This, so far as Scotland is concerned, is an entirely new departure. After all, if there is a difference of opinion between two Ministers, then that normally goes to the Cabinet. But is it conceivable that there would be a difference of opinion between two Scottish Ministers and a case like this going to the Cabinet? I have never in my experience 534 known of such a case, and such cases must be very rare indeed.
I think that the noble Lord has been driven, as his colleague in another place said, to an uneasy compromise in this case; and it is not logical. As my noble friend Lord Selkirk pointed out, in other parts of the Bill the responsibility is laid entirely on the Secretary of State—for example, on the question of remuneration and pension. Surely, the appointment is almost inseparable from the terms of the appointment. If we are to have the appointment made jointly, surely the terms of appointment should be done jointly? If it is wrong to do one separately, then I suggest it is also wrong to do the other separately. The same applies to the staff and the expenses. I noticed that the noble Lord did not answer my noble friend's question as to where the staff was expected to come from. My noble friend Lord Selkirk said that he expected the staff would come from the Lord Advocate's Department.
§ LORD HUGHES
If I may intervene for one moment, I deliberately did not say so, because I have been at great pains to emphasise that there was no change taking place from the present set-up, so that the staffing will be done in exactly the same way as it is at the present time.
§ LORD DRUMALBYN
At the present time we have the Lord Advocate's Law Reform Committee and not the Law Commission. Is the noble Lord saying that the staff for the Lord Advocate's Law Reform Committee is appointed by the Secretary of State for Scotland and paid by him? It may be so—I do not know. But this is what one would deduce from the answer the noble Lord has given to this question.
My noble friend Lord Selkirk made the position quite clear: that it looks as if a really fundamental departure is being made from the present position in the responsibility for the law in Scotland. This has nothing to do with the prerogative of appointment of judges, sheriffs and the like. This is the appointment of a Law Commission, which, in terms that have been stated in proposals in the White Paper, is to replace the Scottish Law Reform Committee. Are we to take it that the Scottish Reform Committee is to 535 disappear altogether? The noble Lord shakes his head. We are very glad to know this, because the Scottish Law Reform Committee has done some splendid work. The noble Lord was good enough, during the short Recess, to send me a note of the work it has done over the past seven or eight years or so, and of the action that has been taken on it. Looking into particular parts of the law, I see that in six cases action has been taken, and in four further cases action is in contemplation at the present time. All this is extremely valuable, and we are very glad to know that the Committee is to be continued.
There is one contrast that one can make with these reports—namely, that these reports are published for all to read before any action is taken upon them. If I read the following section rightly, it is not the intention that the reports of the Law Commissioners should be published when they go to the Secretary of State. The Secretary of State will see them, and, as I understand it from the Bill, he is not placed under any obligation to publish them before action is taken upon them, presumably in the form of legislation. This is the point on which we should particularly like to hear from the Minister of State.
I think the really important issue is this. We have been told that the joining together of the Lord Advocate and the Secretary of State in this appointment is a mere compromise. We have been told, also, that it is unique, and something that has not happened before in Scotland, that two Scottish Ministers should be joined together in making an appointment. The noble Lord ought to be able to justify a departure of this kind in better terms than by saying merely, as his colleague said in another place, that this is a compromise. I hope that between now and the Report stage the noble Lord will consider whether there is not a better means of getting some kind of order into the responsibilities placed respectively on the Secretary of State and the Lord Advocate; and jointly in some cases.
§ 4.29 p.m.
§ THE EARL OF SWINTON
I wonder if it is a gross impertinence for a mere Englishman to intervene for one moment in a Scottish battle. As a matter of 536 principle, I should have thought that, for once, the Government were right in this matter. After all, the Lord Chancellor makes the appointment and has the whole control of this, because he is the Cabinet Minister who is responsible for it in this country. Of course, the Lord Advocate is not a Cabinet Minister; indeed, the Lord Advocate is often not even in Parliament at all. In my memory, sitting with successive Secretaries of State for Scotland in Cabinets from 1920 onwards, I have never heard this sort of issue raised.
One always looked to the Secretary of State for Scotland to answer for Scotland. He was a member of the Cabinet, and certainly Scotland would have been extremely indignant if he had not been. He was the person to whom the Cabinet and his Cabinet colleagues looked on all Scottish matters. He collaborated with all of us in our different capacities where we had offices, and where the same sort of thing had to be done in England as in Scotland. We collaborated as a matter of course. We collaborated often if the duty was laid down by Statute that the Secretary of State and the Minister for whatever Department it was in this country should jointly do something. I should have thought that that was historically and constitutionally the position as regards Scotland. So far from being a matter of indignation that the Lord Advocate is mentioned jointly, I should have thought that it was paying a compliment to the Lord Advocate to put him in when, very often, he is not put in, although naturally the Secretary of State consults him.
There is also, surely, this important question. We hope that this thing is going to work—we all want it to. But no doubt questions will have to be asked about it. The administration of it will be considered from time to time, certainly by Question and Answer, and possibly even by a brief debate in either House. The Lord Chancellor certainly will not be slow to come forward and defend his child here, and tell us all about its admirable progress—and I think it will be good progress. The same thing may be required with regard to Scotland. Who is to answer for Scotland? It cannot be the Lord Advocate if the Lord Advocate is not a Member of the House of Commons. It seems to me that the only 537 person who can answer is the Minister who is in the House of Commons and who is constitutionally responsible; that is, the Secretary of State for Scotland. I do not know whether I am breaking into all the sacred underground understandings that there are in Scotland, but that appears to be the practice which we have all followed together happily for a great many years with common sense.
§ VISCOUNT DILHORNE
I intervene with the same reluctance as my noble friend. I remember the words which the noble and learned Lord, Lord Reid, uttered during the course of the Second Reading, when he said that at first sight it seemed to him quite impossible to justify bringing in the Secretary of State at all in this. He said: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."—[OFFICIAL REPORT, Vol. 624 (No. 60), col. 1200, April 1, 1965.]Then Lord Reid said:But what does the Secretary of State know about either legal personalities or legal problems?I do not propose to embark upon those questions, because I do not think I could answer them at all. But I should be grateful if the noble Lord, Lord Hughes, could say whether it is not the case that the Lord Advocate has to make a great number of appointments himself, without any consultation with the Secretary of State. The Lord Advocate's Committee on Law Reform was presumably appointed by the Lord Advocate alone. I myself feel that there is great force in the view that there ought to be a Minister in Parliament who could answer any questions about the Scottish Law Commission. That may tip the scale at the present time in favour of this joint appointment and joint function. That, I think, was Lord Reid's view.
But I should like to have it confirmed that it will be the Secretary of State who will answer questions, and also that the Scottish Law Commission will be responsible both to the Secretary of State and to the Lord Advocate. I think that, in advertently, the noble Lord did not reply to my point, on the Question "That Clause 1 stand part", about the relationship of the English 538 Law Commission. Perhaps later on we can clear up that point, too. I should have thought it was a very good thing to raise this point. I am glad to know that at least it is not the intention to transfer to the Secretary of State any of the responsibilities or functions of the Lord Advocate. But it is without precedent, as I understand it, and I think my noble friend has played a useful part in drawing attention to this provision.
§ LORD HUGHES
I am most grateful for the intervention of the two English Members, and they need have no occasion to apologise for coming into a Scottish debate, because their contributions have been exceedingly helpful. In fact, the noble Earl, Lord Swinton, expressed much better than I could have done what I proposed to say in reply to the noble Lord, Lord Drumalbyn. If there were to be an Amendment to maintain continuity of practice, the Amendment should be not to leave out the Secretary of State but to leave out the Lord Advocate, because on almost every occasion in the past it has been upon the Secretary of State that responsibility has been laid, for the reasons which have been stated so cogently by the noble Earl.
It is quite some time since we have had a Lord Advocate in the House of Commons. I should hesitate to suggest that any by-election would be created in the near future to ensure that we had one in another place. So the position is likely to persist: responsibility for these matters will rest on the Secretary of State. I think, therefore, it is quite fair to accept that the division which has taken place in this Bill is either to lay the responsibility solely on the Secretary of State or, in the one case, jointly with the Secretary of State, because he is the person who must answer in another place for the working of it. But in relation to the day-to-day working, there will be no change in the operations whatsoever.
It is perfectly true, as the noble and learned Viscount, Lord Dilhorne, has said, that there are a number of cases where the Lord Advocate makes appointments by his own hand if he is not under obligation to consult the Secretary of State or anyone else. That 539 position will continue. I think it would be over-simplifying it if I said that probably in most of these cases these are not matters which would normally be raised in discussion in another place, so that it is not placing the Secretary of State under any difficulty that the Lord Advocate is doing something for which he, the Secretary of State, has to answer.
These are matters which are coming before Parliament from time to time, and it is correct that the Secretary of State should be the Minister primarily responsible. In fact, I am surprised that I have been accused by the noble Lord, Lord Drumalbyn, of putting this forward as a compromise. Quite frankly, I do not see any compromise about it at all. It may well have been said in another place, but I have enough difficulty in answering for what I myself have to say, without accepting responsibility for anybody else. Sometimes things are said which do not always convey exactly what is intended.
I believe it is better to put it on the basis that in this very important matter of legal appointments there is official recognition given for the first time to the important part which the Lord Advocate will play, and I hope that this is not the last time that the Lord Advocate will be associated directly with the Secretary of State in matters of this kind. It is not because we expect to create the tremendous problem for the Cabinet of having to resolve a battle between two Scottish Ministers. It would not be the first time, if disagreement arises between the Lord Advocate and the Secretary of State, that there has been disagreement with Scottish Ministers, but if they did not resolve it it would be the first time they had not found themselves capable of resolving it without the intervention of English Ministers.
THE EARL OF SELKIRK
I am grateful for the argument the noble Lord, Lord Hughes, has put forward, but I do not think he quite met the point which I was putting. It is all very well to talk about the present time, but this is an entirely new scheme. There is nothing of this character which exists at the present time. Therefore it is something in which you cannot properly talk about continuity; it is a change. The point I made is that the responsibility for the law in Scotland has always rested with the Lord 540 Advocate, and there is no doubt that under this Bill it is shared. As is shown in these four or five paragraphs, the greater burden of the responsibility seems to me to rest with the Secretary of State. There seems to me to be clearly a change of emphasis, and it would be untrue to say there has been no change of emphasis. I was not talking about the difficulty of making joint appointments. The noble Lord mentioned that—no doubt it was in his brief—but I did not mention it.
I would mention one other matter. My noble friend Lord Swinton referred to answering Questions in Parliament. Of course that happens to-day frequently; all sorts of Questions are dealt with by the Secretary of State's Department, and that presents no difficulty at all. But I do not think there is any case where the Lord Advocate is joined with anybody in making purely legal appointments, where the qualifications are purely professional. I know, of course, that the Secretary of State recommends the judges of quarter sessions, but I do not think that in any other case in purely legal appointments, the Lord Advocate is joined with anyone. I should like the noble Lord to look at that point, and see whether he can find any other case. I am satisfied that the noble Lord says he does not want to change the emphasis; but I am not wholly satisfied that the emphasis is not, in fact, changed. I am not going to pursue it at the present time, but I would ask the noble Lord to see if he can find any other instance in which the Lord Advocate is joined with the Secretary of State, or with any one else.
§ LORD HUGHES
I will go further and have the matter gone fully into, and I will write and give the noble Earl the list of appointments for which the Secretary of State is responsible, but which he makes after consultation with the Lord Advocate, although there is no legal obligation on him to consult the Lord Advocate at all, and also those for which the Lord Advocate is responsible. I think that when the noble Earl sees the list he will see that if there is any change it is merely in recognising the influence of the Lord Advocate in this particular field.
There is one further point—and I must apologise for omitting it, although by shaking my head when the noble Lord, Lord Drumalbyn, was speaking I gave 541 him the opportunity of indicating what I was thinking. That was in relation to the Lord Advocate's Law Reform Committee. I think I had better read—because I think it will satisfy the noble Earl—the note which my friend the Lord Advocate has given me on this particular point. It is this:The Government shares the general appreciation of the value of the work which the Scottish Law Reform Committee has done since its establishment in 1954, under the chairmanship first of Lord Walker and latterly of Lord Kissen. On the face of it, however, the establishment of a permanent commission of lawyers with general functions of review of law does suggest, at any rate in Scottish conditions where the profession is comparatively small in number, that there is no longer occasion for separate review of the law by a part-time committee of lawyers, considering individual aspects of law referred to it. On the other hand the need for consultation with a broadly based body, necessarily part-time, has never been ruled out, and it has always been contemplated that the Commission themselves might advise that certain questions might he referred to such a body. This is provided for under Clause 3(1)(b) of the Bill. Thus where the subject is essentially one for professional consideration, there is nothing whatever to prevent the appointment ad hoc of a committee similar in composition to the present Scottish Law Reform Committee, or indeed for the Scottish Law Reform Committee in effect to continue in being, perhaps however with somewhat adjusted terms of reference.In the event, no immediate action is being taken to disband the Committee, and the Lord Advocate has it in mind, as soon as the Scottish Law Commission is set up, to examine how, under the new arrangements, use can best be made of the services of those who have been so generously prepared to make their time and experience available in the work of law reform.I apologise for not having stated that before, because it was an important part of what the noble Earl, Lord Selkirk, raised.
THE EARL OF SELKIRK
May I thank the noble Lord for the full statement he has made? It is the first time we have heard this statement; I am extremely grateful and I think it will give a great deal of satisfaction to hear what the noble Lord has said. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
THE EARL OF SELKIRK
We have had a good deal of discussion on this subject and I do not think we need resume the arguments about fixing a term to the period of appointment. I certainly think there should be a term in 542 Scotland, and I am suggesting that the period should be five years. I very much hope the noble Lord will be able to accept this. I beg to move.
§ Amendment moved—
Page 2, line 15, at end insert—
("No person shall be appointed to the office of Commissioner for a period of more than five years.")—(The Earl of Selkirk.)
§ LORD HUGHES
I do not think we need spend a lot of time on this Amendment. I can say quite clearly that we are disposed to accept the principle of this Amendment, and in view of what my noble and learned friend the Lord Chancellor said, we will do so in similar terms to what was arranged under Clause 1. I would point out that it would not be in precisely the terms indicated, because those would not make it quite clear that a person could serve more than one term of five years; the wording could be interpreted as meaning that they were to serve a number of terms which in the aggregate could not exceed five years. I think it is clear to all your Lordships that what is intended in both clauses is that a period should be put to any particular term, and if that term were five years the person, after completion of that term, would be eligible for reappointment for another term. With that statement of intention to accept in principle, I hope the noble Earl will be able to withdraw this Amendment, so that a suitable Amendment in those terms may be put down at the next stage.
THE EARL OF SELKIRK
I am grateful to the noble Lord. I am happy to accept his assurance, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.48 p.m.
THE EARL OF SELKIRK moved to add to subsection (4):
A person who holds the office of sheriff principal may be appointed as Commissioner without relinquishing that office.
§ The noble Earl said: This is frankly an investigating Amendment, to see what sort of appointment it is thought may appropriately be held at the same time as that of a Commissioner on the Law Commission. We have had some interesting descriptions of the kind of terms of appointment. Apparently the English Commission will be required to 543 give substantially whole time, whereas the Scottish Commission will have to give a substantial part of their time. I do not know what difference there is in those two meanings, but I gather that neither will in fact be nominally absolutely full-time. I gather from what the noble and learned Lord the Lord Chancellor said to-day about Scotland that some Commissioners would be whole time and some part-time; I do not know whether that is correct or not.
§ I am moving here that an advocate could continue as a sheriff principal while holding a position on the Commission. That appears to be a reasonable thing to provide. Would it be possible for a man to continue as a partner in a law agents' firm while still being a member of the Law Commission? Would he be able to continue in private practice or continue holding a teaching appointment? I think it is important that we should be able to get first-class men to do the job rather than that this should be rather a nice job perhaps for a second-class man. It may therefore be advisable in some ways that people should be able to continue with other appointments. If the noble Lord is able to tell us something about the salaries in contemplation, I shall be glad. So far we have heard nothing on this subject, and it is important in considering what sort of appointments we are going to get. I beg to move.
Page 2, line 19. at end insert the said words. —(The Earl of Selkirk.)
§ LORD HUGHES
Once again I am going to invite the noble Earl to withdraw the Amendment. In doing so, I wish to assure the Committee that there is no difference between Her Majesty's Government and the noble Earl on this point. Basically, the two Commissions will be quite different, in that, as has been indicated, the English Commission is more likely to be full-time than otherwise, whereas I think it is almost certain that the Scottish Law Commission will be part-time, with the exception of the Chairman. The Chairman will be full-time, and it is intended that the Chairman of the Scottish Commission will be the holder of high judicial office; and in the terms of Clause 2(4) he will be able to take appointment as a Commissioner 544 without relinquishing that office, but he will not be required to carry out the duties of the office.
If I may anticipate a point which may be raised at a later stage, if one of the Judges were in fact to be appointed to the chairmanship of the Commission, it might be asked, who is to do the work if a Judge is to be excused from carrying out his duties during that period? There is, in fact, in Scotland at the present time permission to appoint two additional Judges beyond the sixteen who are in office, and I would expect that use would be made of that provision to appoint an additional Judge to take the place of the Commissioner. Certainly it is the intention and the belief of the Government that the Bill, as worded, does not prevent a sheriff from holding office. Just on a purely technical point, of which I had no knowledge until my attention was drawn to it the other day, the term "principal" is purely colloquial. The actual reference is to "sheriff"; the "principal" has crept in just in the same way as "Lord" has crept in front of "Lieutenant" in describing Her Majesty's Lieutenants.
But we do not believe that it is necessary to amend the clauses at all in order to make it possible for a sheriff to hold office, with the exception of a sheriff-substitute. As the law stands at present, a sheriff-substitute could not be a member of the Law Commission because, by the Act of 1907, a sheriff-substitute is specifically precluded from taking any appointment other than those which by Statute are attached to his office. I would say quite frankly to your Lordships that it depends a great deal on what happens to Clause 1 whether the Government wish to make any further amendments to Clause 2.
If I may state the position in relation to sheriffs-substitute, I would say that we would probably wish them to be placed in no position inferior to that of an English county court judge, and in due course an Amendment removing the disqualification imposed by the Act of1907 might be needed.
However, I am anticipating. We have no desire to rush into this unless it is necessary to preserve the status of the Scottish sheriffs in relation to people South of the Border. But if, on further 545 examination, it should prove to be desirable to make a reference of the kind to which the noble Earl has referred, then an Amendment will be tabled at the next stage. But I would suggest to your Lordships that it is very much bound up with the sort of alteration which may be made in Clause 1 including whether or not the word "high" is taken out of the clauses, and what will eventually emerge is something which would keep the Scottish position much on a parallel with that in England.
Finally, I would say to your Lordships that it is intended that the people who may be called in to do work on the Commission as part-time Commissioners will be free to undertake such other activities as will be agreed between themselves, the Secretary of State and the Lord Advocate in making the appointment. Obviously, before a man undertakes the duty of a part-time Commissioner he would wish to be satisfied of the conditions under which he will be working, and that he could maintain such part of his outside interests as he felt reasonable. It is certainly not contemplated that those taking membership of the Scottish Law Commission on a part-time basis would have to give up all other interests. We believe, having regard to the comparatively small nature of the Scottish legal body, that it will be impossible for the Commission to work if we are not able to rely on having first-class men giving part-time service, rather than, as I think the noble Earl implied, having second-class or third-class men who can give us all their time, which we should probably not wish to have.
§ LORD GUEST
I am glad to hear the noble Lord say that it is not intended that a holder of the office of sheriff principal whose name appears here should be precluded from being a member of the Commission. The office of sheriff in Scotland is a peculiar one. I do not think it has any exact counter part in England. It is a part-time appointment. All holders of the office of sheriff are leading members of the Bar who are engaged in active practice and do the work part-time as available. It would be most undesirable that a member of the Commission, if he were invited to become a sheriff, should have to give up that appointment. I am glad to 546 hear that it is the intention of the Government that it should not be any bar to the holding of a Commissioner's appointment that he is a sheriff at the same time. If it is not clear in the Bill, then I think it should be made clear.
THE EARL OF SELKIRK
I should like to thank the noble Lord for making this point clear. I understand that if there is any doubt about the validity of the appointment of a sheriff he will put something, in the Bill on the Report stage. I am grateful for that. I am a little sorry to find it necessary to follow the English practice in regard to what we call sheriffs-substitute. If it is a good thing for Scotland to have sheriffs-substitute, I do not think it matters one bit to us whether or not the English put in the word "high". It is a matter about which the noble Lord should make up his own mind—whether it is the Secretary of State or the Lord Advocate. I see no need in this particular case to follow the English practice, because the sheriff-substitute is something quite different from the normal structure in England.
There is one thing which the noble Lord said which I was glad to hear—namely, that he holds high hope of having a Judge of the Court of Session as chairman. I am sure it will give great confidence in this Commission if and when a name can be announced for this purpose. I am sure it will give great satisfaction to know that this matter has been seriously, if not completely, considered. I should like to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clause 3:
§ Functions of the Commissions
§ 3.—(1) 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, and for that purpose—
- (a) to receive and consider any proposals for the reform of the law which may be made or referred to them;
- (d) to prepare comprehensive programmes of consolidation and statute law revision,
547 and to undertake the preparation of draft Bills pursuant to any such programme approved by the Minister;
- (e) to provide assistance to government departments and, at the request of the Minister, to other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law;
§ (2) The Minister shall lay before Parliament any programmes prepared by the Commission and approved by him and any proposals for reform formulated by the Commission pursuant to such programmes.
§ 4.59 p.m.
§ VISCOUNT DILHORNE
moved, in subsection 1(a), to leave out "and consider". The noble and learned Viscount said: After the brief but refreshing Scottish interlude, we now come back to the English Law Commission, and to what is perhaps the most important clause of the Bill. It is the clause which sets out what are to be the functions of both the English and the Scottish Commissions, and generally observes their duty…to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reformet cetera. There are then specific headings. This Amendment relates to the first specific heading, which reads:and for that purpose—to receive and consider any proposals for the reform of the law which may be made or referred to them".I find it difficult to see why it is necessary to impose a statutory duty on each of the Commissions "to receive and consider any proposals for the reform of the law which may be made or referred to them ". I should not have thought that there was the least need for that, or that there was the least need to impose on them a statutory duty to receive proposals —which I suppose means that they must not refrain from accepting and opening letters addressed to them. When one goes on to place upon them the duty of considering—and each Commission has to do it—any proposals for the reform of the law which may be made or referred to them, no matter from what source they come and no matter what substance or otherwise there may be in the suggestions, I consider it is wrong and that it has positive disadvantages.
Without this provision in the Bill, I have no doubt that nobody would suggest that the Law Commissioners would be 548 acting ultra vires if they gave consideration to proposals sent to them which they thought worthy of consideration. I do not think one would want any statutory authority to secure that. By putting this in as a first specific statutory duty to which they are to be subject, one will get to a situation in which, if they are to discharge the duty which is imposed on them, a considerable amount of their time may be wasted. What is more, this provision may well lead to the tabling of questions which are quite unnecessary. Questions may be asked as to whether So-and-So's proposal, sent by post from somewhere, has been received by the Commission, what consideration has been given to it, and so on. I do not feel that that would serve any useful purpose.
This is by no means a wrecking Amendment but is endeavouring to be helpful. It would be better to leave out paragraph (a) entirely, for I consider it to be unnecessary. If that is going too far, then let us at any rate leave out the words "and consider", as proposed in the Amendment. It is the obligation "to consider" which is being imposed on them that I feel is unnecessary and may lead to trouble and unnecessary work on the part of the Commission. As I have said, it may also lead to the tabling of a number of probing questions which are unlikely to serve a useful purpose.
Page 2, line 28, leave out ("and consider").—(Viscount Dilhorne.)
§ VISCOUNT SIMONDS
May I add a few words about the Amendment, which is also in my name? The noble and learned Lord, the Lord Chancellor, spoke of me in such charming terms, for which I am most grateful, that I hesitate to criticise anything in this Bill. I know how devoted he is to it; I know his enthusiasm. It is his own child and he is reluctant to see one hair of its dear little head ruffled. But I cannot go as far as that. I concur in what the noble and learned Viscount, Lord Dilhorne, has said: this paragraph is surely utterly unnecessary, it is otiose, and, if I may be forgiven for saying so, it is really rather silly.
Why should one put upon these Commissioners, whose duty it is, in the rather magniloquent language in the earlier part of the clause, to "review the law", the 549 duty of receiving and considering any proposal? The paragraph might well go on to say "and they shall regularly read the Law Journal and the Law Reports". Of course they must acquaint themselves with the law in all its aspects, and that, necessarily, includes the receiving of proposals and the consideration of them until they go into the waste-paper basket.
The noble and learned Lord the Lord Chancellor knows, as the noble and learned Viscount, Lord Dilhorne, and I know, what a crazy lot of proposals the Lord Chancellor receives. What is the Law Commission going to get? It is going to get every sort of crazy proposal from somebody to whom reform of the law means not what we mean by it, but an alteration of the law to suit what he thinks ought to be the result. And what "A" thinks ought to be the law is by no means what "B" thinks ought to be the law. The result will be that the Law Commission will be inundated with proposals from every crackpot and will be under a statutory duty to receive and consider them. Would not the Lord Chancellor consider it wiser to leave out these words altogether, for they really add nothing to the Commission's duties? I hope he will be conciliatory on this matter.
§ LORD CHORLEY
The noble and learned Lords who are supporting this Amendment are making too heavy weather of it, and I hope that my noble and learned friend the Lord Chancellor will not accede to it. No doubt there will be a certain number of crackpot suggestions, but it is important that serious organisations which undertake a great deal of work in law reform should realise that they have a statutory right to make suggestions to the Commission which will be properly considered. The Society of Public Teachers of Law can claim a great deal of the credit for the revival of the Law Revision Committees after the war. They came to an end with the war and the authorities made little effort to put them into operation again. It seems to me right and proper that organisations of this sort should be encouraged and that the Commission should have the duty to consider suggestions which are put up to them by organisations of that kind.
The suggestion made by the noble and learned Viscount, Lord Dilhorne, would leave us in the absurd situation of 550 the Commission's having the duty to receive, and nothing more—which would leave the whole thing in the air. It would be better to leave it out altogether than to leave it in the state which Lord Dilhorne is proposing. Does it really mean that every Commissioner must sit down and consider seriously all these things that come in? Of course it does not. A body like this will work out its own method of work. The noble Viscount knows as well as I do that the Court of Criminal Appeal is inundated with applications from prisoners for a review of sentences and verdicts. It does not proceed on the basis of all members of the Court sitting together as a body and considering these matters. There are preliminary reviews by one member of the Court who reports to his fellows so that they are in a better position to deal with the situation. Anybody who has had anything to do with that Court knows that this works very effectively.
Undoubtedly the Commission will evolve methods for handling proposals which are sent in, which will not involve each and every one of the Commission in giving careful and individual attention to everything that comes in. This is the sort of "heavy weather" argument which it seems to me is more directed to preparing the way for a useful proposal than anything else. I hope that the noble and learned Lord will reject this Amendment.
§ LORD CONESFORD
I do not think the matter is as simple as the noble Lord, Lord Chorley, suggests. I rather agree with him that I cannot see that this particular Amendment, taken literally, is very good, because I do not think that the mere omission of these two words would remedy the situation. I am much more attracted by the argument of the noble and learned Viscount, Lord Simonds, for leaving the paragraph out altogether. What worries me is that, if these words are left in, a number of people will be tempted to send all sorts of proposals to this body, thus wasting a good deal of its time. The noble Lord, Lord Chorley, talked about proposals made by certain responsible bodies. I agree that we should like them to be considered, but the words as they stand are not, "may be made or referred to them" by people with particular qualifications, but "any proposals… which may be made or referred to them," and I fear that this may attract a 551 great many crackpots to waste the time of the Commissioners. It seems to me that, if the whole of paragraph (a) is not to be left out, a possible way of remedying the situation might be for the Lord Chancellor, or somebody else, to act, so to speak, as a post office, in order to see that the Commission's time is not wasted by perfectly futile proposals being sent to them.
§ 5.12 p.m.
§ THE LORD CHANCELLOR
With the best will in the world I cannot think that this Amendment would be an improvement. It would leave the clause with the intention that it is the duty of the Commissioners to receive any proposals for the reform of the law which may be referred to them but that they are not apparently to do anything with the proposals when they receive them. What does this mean? They are presumably under a duty to open the envelope and read what is inside, but if what is inside is a proposal for the reform of the law how do they read the letter without considering the proposal? That does not seem to agree with the facts of psychology. There may be proposals sent in by some sort of "lunatic fringe", in which case the proposal will not receive more than a moment's consideration, because that is all it will deserve. If left with the proposed Amendment I do not know what the Commissioners are supposed to do. They will give such weight to any proposal made as they think fit.
I think it is important that the public should realise that there will be a duty on the Commission to consider proposals. The Commission should be a clearing house for law reform, and I hope that it will receive proposals from judges, masters, magistrates, the Bar Council, the Law Society, the Magistrates' Association and other such qualified bodies; and also, I should particularly hope, from the public. I think the noble Lord, Lord Cones ford, is taking the view that it is one thing to receive proposals from qualified bodies but that the public should not be encouraged to submit proposals. If the public existed for the law, I could understand that view; but if the law exists for the public, how do the Commissioners know where the shoe is pinching most? After all, it is the 552 members of the public who know where the law impinges on them in their daily lives; therefore it is important that it should be realised that this is the clearing house for law reform and the Commissioners must be under the duty to consider proposals.
When the Bill was drafted I was not aware of the terms of reference of the New York Law Revision Commission which has now been in successful existence for a good many years. I see that that Commission is charged with the following statutory duties:
The members of the New York Commission have said in one of their annual reports that they find that one of their most useful functions is as a clearing centre and receiving suggestions, not only from judges and those learned in the law, but also from the public. It is for those reasons that I suggest that there is nothing wrong with the clause as it stands.
- "1. To examine the common law and statutes of the State and current judicial decisions for the purpose of discovering defects and inaccuracies in the law and recommending needed reforms.
- "2. To receive and consider proposed changes in the law recommended by the American Law Institute, the Commissioners for the Promotion of Uniformity of Legislation in the United States, any Bar Association or other learned bodies.
- "3. To receive and consider suggestions from judges, justices, public officials, lawyers, and the public generally as to defects and anachronisms in the law."
§ VISCOUNT DILHORNE
I have listened with interest to what the noble and learned Lord the Lord Chancellor has said, and also to what the noble Lord, Lord Chorley, said. In moving this Amendment I said that probably the whole of paragraph (a) was unnecessary and would be better left out, but that in case that was thought to be too much, I was proposing only to leave out the words "and consider". That was the peg on which this subject was raised. I am not convinced by what the noble and learned Lord has said. I agree that this Law Commission should be recognised as the clearing body to which people will send suggestions. I think that will inevitably happen, but I do not think that we want to impose this particular statutory duty upon the Commission. I do not think it is necessary. I do not think we ought to impose on them the duty of receiving and considering proposals that 553 come to them, because by their very nature that is what they will do. I think the paragraph is otiose and unnecessary. Perhaps the noble and learned Lord would like to think this over a little more, but I believe that the clear exposition of this duty may lead to some unnecessary and tiresome questions being asked in regard to Parliamentary procedure.
I do not propose to press this Amendment, at any rate now, but I should like the noble and learned Lord to give further thought to it because, despite what the noble Lord, Lord Chorley, has said, this Amendment is not seeking to pare anything away but is trying merely to make this a better Bill. I entirely agree that the Law Commission should be open to receive suggestions from the public. It should be ready to consider them, and no doubt it will consider them, but I do not see that it is necessary to put that specific duty on them in a Statute under English Law. Indeed I think there is a disadvantage in doing so. I will not repeat what I have already said, but I will ask the noble and learned Lord to look at the point again. I certainly would not put forward the suggestion that these words should be left out, with a view to stopping the Commission from receiving such suggestions and, where appropriate, considering them. The Amendment is intended to be helpful, and if the noble and learned Lord will consider it again I will ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.18 p.m.
§ VISCOUNT SIMONDS
moved, in subsection (1), to leave out paragraph (d). The noble and learned Viscount said: My noble and learned friend Lord Dilhorne has asked me to deal with this Amendment. As your Lordships will no doubt see, it is an Amendment which may at first sight seem a little odd, for this reason. Everybody, of course, agrees that it is an important part of law reformto prepare comprehensive programmes of consolidation and statute law revision,and so on. Everybody knows that, and it has for a long time been the practice to have consolidating Statutes from time to time. Accordingly, it may seem odd that I seek to delete this paragraph. But it will not seem odd to anybody who is 554 familiar with the present machinery for doing just that. I must explain that, as shortly as I can, though I fear that I shall be repeating something that I said upon the Second Reading of this Bill.
As I have said, it has always been the practice from time to time to have consolidating Acts, but action has by no means kept pace with necessity, with the result that at the end of the Second World War there was an enormous back-log of work to be done in the consolidation of Statutes. My predecessor, Lord Jowitt, greatly to his credit, gave a great impetus to the work of consolidation. He set up a Committee known as the Statute Law Committee, an exceedingly high-powered body. I do not want to make odious comparisons between one body and another, particularly as we do not know the constitution of the other body, but it is sufficient to say, as the noble and learned Lord the Lord Chancellor will himself know, that the Statute Law Committee is an exceedingly high-powered body, and that at any rate it will not he inferior in knowledge of legislation and the machinery of Government to the Law Commission, whatever its members may be. That body so set up receives annually from the Parliamentary draftsmen a programme of consolidation and Statute Law revision, which is exactly what the Law Commission are to do under this Bill.
Excellent in conception, the Committee has been equally excellent in execution and in the course of these last fifteen to twenty years (I do not know quite how many years) it has produced, I think, over 100 Consolidation Acts. That number is limited only by the fact that the number of Parliamentary draftsmen available for the work is limited. If there were more Parliamentary draftsmen, the number of Consolidation Acts could be greatly increased. It is true that the Committee sits only once a year; there is no need for it to sit more often. If there were such a need it would sit more often. But the programmes are not programmes for a week or a month; they are programmes for a long period, and if it was desired they could be for a longer period.
Therefore, when I read this Bill and saw what was to be the duty of the Law Commission under paragraph (d) of Clause 3(1), I thought "Alas! that is the 555 end of this excellent Committee, at any rate so far as its primary function is concerned", for it must be a cardinal rule—indeed, an elementary rule—of administration that you do not have two bodies at the same time aiming at the same target, particularly as the only machinery available for working it is the Parliamentary draftsmen. So I felt that so far as that aspect was concerned the Committee came to an untimely end. And that, I thought, was a great pity. But I was wrong, for it appears from what has been said, both in another place and here, that the Statute Law Committee is still to continue to function; and if it is to function, then presumably it is to exercise the same function.
Therefore, there is this Committee doing this admirable work, and under the Bill there is now another Commission which is to do the same work. I think that that is all wrong. I have put this Amendment down more as a probing Amendment than anything else, to see what the noble and learned Lord the Lord Chancellor—if I may ascribe responsibility to him personally—had in mind in this respect. He knows by now that I am friendly to this Bill and that I want it to work. I did not see a way out while these two bodies were at work, with the Parliamentary draftsmen reporting annually with their programme to the Committee, and the Law Commission reporting to the Lord Chancellor himself—the Lord Chancellor, I may say, presides over the Statute Law Committee—and so I put down this Amendment.
But on the morning of the last day when this matter came before the House, just before the adjournment, what I thought was rather a bright idea occurred to me—one which would enable the two parties to work together. I suggest to the Lord Chancellor that the matter might be covered if he prefaced paragraph (d) with these words:From time to time at the request of the Minister…In that way he would keep his finger on both bodies, and there would not be the Law Commission pursuing what they otherwise must do—their statutory duty of producing comprehensive programmes 556 —which might clash with the programmes of the other body.
I speak without knowledge, and the Lord Chancellor will correct me if I am wrong; but I have not the least doubt that at this moment, according to a programme which they submitted at the last meeting of the Statute Law Committee, the Parliamentary draftsmen have in the pipeline a number of consolidating Acts already in the process of drafting. I also have no doubt, if my recollection serves me correctly (it is some time since I sat on that Committee), that they have programmes for the future; and if they have not got them written down they have them in their minds. I say that because there is nobody who knows better what is the best method of procedure in regard to consolidating Acts than the Parliamentary draft men, who live with Statutes, and who are in constant touch with the various Departments. I have no doubt that they know, as nobody else knows, what is to be done. If the noble and learned Lord the Lord Chancellor will be good enough to consider that, I shall be happy to withdraw my Amendment which, as I say, is really a probing Amendment. But without it I do not see how confusion is to be avoided. It is with that in view, and nothing else, that I move this Amendment.
I must just add that the Bill contains one blessed word which I think is not in the terms of reference of the Statute Law Committee, and that is the word "comprehensive": the Bill refers to "comprehensive programmes". I really do not know what that means. A programme is a programme which extends over a number of years. That, I think, is the ordinary course of practice of Parliamentary draftsmen in regard to the Statute Law Committee. I think that one must be realistic or pragmatic, or whatever the word is, about the matter. There must be these consolidating Acts as occasion occurs, as Government Departments demand or suggest, according to their urgency, and I do not think that there is much point in having the word "comprehensive" in this regard. So really there will be the two bodies doing the same thing. I beg to move this Amendment, but I am quite prepared to withdraw it if the noble and learned Lord the Lord Chancellor will help me in the matter.
Page 2, line 41, leave out paragraph (d).—(Viscount Simonds.)
§ 5.28 p.m.
§ LORD CHORLEY
I should like to say a few words about this matter, if the noble Viscount will forgive me. I regard this as a more dangerous suggestion than the one which the noble and learned Viscount was supporting a few minutes ago, on the basis that the new type of consolidation which is envisaged by this paragraph is not going to be quite so narrow as the sort of consolidation we have had in the past. I have read what was said by the noble and learned Viscount, Lord Dilhorne, and also by the noble Viscount, Lord Simonds, in the earlier discussions on this Bill, Unfortunately, having received wrong information as to the time when this Bill was going to be before your Lordships I was abroad at the time, which was a great sorrow to me. As some of your Lordships know, I have been very much in this movement for a long time and should have liked to take part in the discussions at earlier stages.
But it seems to me that both of the noble and learned Viscounts live in a state of euphoria about the consolidation which has been going on. Not only has it been much too slow, but in fact it is a very imperfect type of legislation, in that it consolidates absolutely everything which is already there. It is true that Lord Jowitt's Act introduced an improvement, in the sense that corrections and minor improvements can now be brought in. Before that, even they were not possible; it had to be an ipsissima verba type of consolidation. Even now, it is provided quite clearly in the Act, which I have been looking at, that if there is anything more than what amounts to little else than verbal correction, then the Committee, the Lord Chancellor and the Speaker all have to be satisfied that there is nothing there which requires to be brought before Parliament because some alteration may be involved.
The noble and learned Viscount, Lord Simonds, referred in his speech to the "Bills of Exchange Act, 1888". I am sure that that is a printer's error, but I hope he will see that it is put right in the bound Hansard. It is perfectly true that that Act, the Act of 1882, was the 558 forerunner of a very important series of consolidating Statutes, but it is unlike the recent consolidating Statutes in that it in troducedimportant alterations in the Common Law on the subject of bills of exchange. They were introduced as a direct result of the employment of Sir Mackenzie Chalmers. Here again, if I may say so, I think this must have been a mistake of the noble and learned Viscount, whose accuracy is usually beyond reproach, but it appears in Hansard that he said "Sir Richard Chalmers". Sir Mackenzie had two Christian names, but neither of them was Richard, and he is always known among commercial lawyers as Sir Mackenzie Chalmers.
He was indeed a very great draftsman and a considerable commercial lawyer. He was employed by the Bankers' Institute to go into the whole of this business before it was brought before Parliament at all. As a result of the conferences between him and the bankers, it was proposed that a number of important alterations should be in troducedin to the law. So, both before and as the law was being consolidated on this important commercial topic, important changes were made. But that is quite impossible under the present procedure; and even under the procedure as modified in the Act introduced by the noble and learned Earl, Lord Jowitt, with whom I had the great privilege to work during those particular years, such alterations were not possible. But it seemed to me that the Lord Chancellor was now aiming at something rather better: that in a comprehensive scheme the statutory position—
§ VISCOUNT SIMONDS
May I interrupt the noble and learned Lord? Perhaps I have misread this. I thought the work of consolidation of Statute Law would proceed upon precisely the same basis as consolidation does now. There is nothing in the Bill to suggest that, in consolidating Statutes, they are to introduce any new law, except so far as was permitted and is permitted by the Act of 1949.
§ LORD CHORLEY
The noble and learned Viscount may be right. I hope he is not, and if the noble and learned Lord on the Woolsack agrees with him I hope there may be an opportunity at the next stage to widen it a little.
§ LORD CHORLEY
I know that the noble and learned Viscount is an almost fanatical enthusiast for precedents, and I do not blame him for that at all; it is a great tradition in English law. I do not myself have such a strong inclination towards precedents; but I took the opportunity this afternoon to look through the Statutes of the Realm, and the first volume I put my hand on, 1956, had the consolidation of enactments regarding sexual offences, on which there were many Statutes going back a long way. This Statute, I think, illustrates very well the defects in the present procedure, because there was an old Statute, which I think had been passed in the eighteenth century—I did not have time to look it up—which made it an offence fraudulently to abduct an heiress, which I should have thought is really quite out of date at the present time. It seems tome quite otiose to bring into a consolidation Statute an old Statute of that kind.
The Sexual Offences Act, 1956, because it had to bring in all these old Statutes from all the old Statute Books, extends to no fewer than 56 sections—quite a number of pages in the Statute Book. It should be possible to consolidate the law and to improve the law in relation to this particular matter in a much smaller space, and to introduce essential improvements and leave out bits of the law which are no longer required for our modern society. But the present procedure does not enable that to be done. I hope that the noble and learned Lord will be able to tell us that, under his proposals, that can be done, because I am sure that, apart from those who are fanatical admirers of precedents, all those who wish to see the law made a reasonable code under which the modern citizen can live hope that something better will be provided.
§ 5.37 p.m.
§ THE LORD CHANCELLOR
I welcome this Amendment so far as it is a probing Amendment and, if I may say so, a very natural one. The Statute Law Committee, which is of considerable antiquity, is, as indeed the noble and learned Viscount, Lord Simonds, has said, a singularly high-powered Committee, 560 and it has done admirable work, not merely in the field of Statute Law consolidation but also in the field of the Statutory Publications Office. If there is now to be a Law Commission, it is natural enough to ask: how will these bodies work in together, or will the Statute Law Committee come to an end? Of course, as the noble and learned Viscount will realise, I cannot bind my successors in any way. The Statute Law Committee is a Departmental Committee of the Lord Chancellor, and, of course, nothing can stop any future Lord Chancellor from continuing it or discontinuing it.
For my part, they do admirable work; but if one of the duties of the Law Commission is to prepare comprehensive programmes of consolidation and Statute Law revision, one of the questions, one knows, in a particular field may well be: is this a case in which there is really nothing wrong with the law itself except that there are innumerable Statutes which would benefit by being all put together? In other words, is this a case in which all we want is consolidation? Or, secondly, there may be a case in which it may be desirable to consolidate the existing law first and then proceed to reform. Or, thirdly, there may be a case in which, in the opinion of the Commisison, the existing law is so hopeless that it is no use trying to consolidate; you have really to reform altogether. If that is so, it would not be useful for the Statute Law Committee to be considering consolidation until they know what the Commissioner is' programme is.
The only difficulty, I think, which has arisen in the past about the work of the Statute Law Committee is this: that they meet only once a year, usually for a fairly short time so far as consolidation is concerned. I was reading again last night the last ten years' minutes of the meetings of that Committee. I have not found a time when, so far as consolidation is concerned, they did other than say, "We agree with what the Chief Parliamentary Draftsman proposes", no doubt because his experience is so great and his ability, as we all know, so great that it would not be likely that what he proposed would not be sensible. But the ordinary 561 course of that Committee on consolidation work is to receive once a year a report from the Chief Parliamentary Draftsman, who says, "I propose in the next twelve months consolidation in fields A, B and C"; and the Committee invariably say, "That is a very good idea".
The difficulty about this has always been that nobody has ever sat down to think, "If we really want to get our Statute Book into proper shape, how long is it going to take us to do it?". This is almost entirely a question of having enough Parliamentary draftsmen, because it is really they who do it. Nobody has ever sat down to say: "If we want our Statute Book in proper shape, with substantially all the Acts dealing with one subject in one Act, how many draftsmen should we need if we try to do this in, say, ten years or 25 years?" This, I hope, is one of the things which the Law Commission would do.
It is clear that if any substantial progress is going to be made at a faster rate than hitherto in the field of Statute Law consolidation, an increase in the number of Parliamentary draftsmen is essential. It is at present proposed that four Parliamentary draftsmen should be seconded to the staff of the Law Commission from the start. But they will still be under the Chief Parliamentary Draftsman. We shall not develop two different styles at the same time. It will be essential for any future Lord Chancellor who desires to make real Progress in this field to increase the number of Parliamentary draftsmen. But this will be a matter which, if I am asked what I propose to do, I shall say is one to be discussed between the principal members of the Statute Law Committee, the Chief Parliamentary Draftsman and the chairman of the Law Commission. It is evidently a matter which they should work out between them.
§ VICOUNT SIMONDS
I am obliged to the noble and learned Lord for what he has said; but there is nothing in the Bill which suggests that the Law Commissioners are under the control of the Lord Chancellor in any way. As soon as they are appointed, their statutory duty is to prepare comprehensive programmes. 562 Of course, time must be given for them to collect their quota of Parliamentary draftsmen; but, directly they have them, they go ahead without consulting the Lord Chancellor or anybody; it is at a later stage that they submit their programmes. How is that going to work if, at the same time, the Parliamentary draftsmen are making their programme, getting on with it and in due course report to the Statute Law Committee? I thought that that difficulty would be met if the measure of control which I suggest be given to the Lord Chancellor, is introduced by a simple form of words. I think this helps; but if the noble and learned Lord does not want them —
§ THE LORD CHANCELLOR
I think, with respect, that this is a misapprehension. They are not to go ahead on consolidating Statute Law. They are to prepare programmes for law reform; but these programmes are to be submitted to the Government of the day or to the Lord Chancellor for his approval. He will consult with the other Ministers who may be concerned.
§ VISCOUNT SIMONDS
That is exactly what the Parliamentary draftsmen do, to the Statute Law Committee. There will be two bodies doing the same thing.
§ THE LORD CHANCELLOR
With great respect, the Law Commission will be looking at things over a term of years. At the moment it is very much left to the Chief Parliamentary Draftsman to decide what fields he thinks could usefully be consolidated without reference to public need, or which portion of law may need reform first or whether there should be consolidation first or whether it would be better not to consolidate but to reform the law altogether. The Law Commission will have the general superintendence of the matter. I would certainly hope that any future Lord Chancellor would retain the admirable services, particularly in relation to statutory publications and citation of statutes and so forth, which has been done by the Statute Law Committee; but I think any Lord Chancellor of sense would get round the table fairly early with the chairman of the Law Commission and with Sir Noel Hutton and with the leading members of 563 the Statute Law Committee and would probably decline to commit himself to what he regarded as a final solution until he had had the opportunity of discussing the matter in those three quarters.
§ 5.45 p.m.
§ VISCOUNT DILHORNE
I have listened carefully to all that has been said by the noble and learned Lord Chancellor and by the noble Lord, Lord Chorley, in response to the Amendment moved by my noble friend. I think the noble Lord, Lord Chorley, was dealing with an entirely different matter than the subject matter of this Amendment in that he discussed the question of what should constitute consolidation. The noble and learned Lord the Lord Chancellor did not answer the question put by the noble Lord, Lord Chorley; but I think it is perfectly clear that in fact this clause does not enlarge at all the power of amendment in the process of consolidation.
If I may come back to the Amendment, I can well see the Law Commission wanting to know what is going on in the field of consolidation if that is to be continued by the Statute Law Committee. There is a case then for the closest collaboration. But the time at which they should have got round the table to discuss the relationship between the Statute Law Committee and the Law Commission was surely before the presentation of this Bill; because, surely, as the Bill is drawn now the statutory duty is imposed on the Law Commission to do precisely that which the Statute Law Committee has done—and has done so well, as the noble and learned Lord acknowledges. The only trouble has been the shortage of Parliamentary draftsmen. As he himself acknowledged, the supply of Parliamentary draftsmen is still the governing factor. My noble friend is right. Paragraph (d) imposes this statutory duty on the Law Commission which is the very duty now discharged by the Statute Law Committee. I do not myself see how the two can run along side by side. It is no use getting round the table and negotiating some sort of machinery if you have, in advance, imposed the duty on the Law 564 Commission of preparing comprehensive programmes and undertaking the preparation of draft Bills. That is a duty placed upon them—undertaking the preparation of draft Bills. As that duty is placed on them, I must say there is force in what my noble friend says as to the duplication of functions; and I would hope that the noble and learned Lord would give further thought to this.
As I understand it, he does not consider the Law Commission should be a superior body to the Statute Law Committee and tell the Statute Law Committee what it is to do. I think I have understood that aright: that the Law Commission will not be the masters and the Statute Law Committee the servants in this field. But if that is not so, and if the Statute Law Committee is continued in being to cover the same kind of work as is done now, there must be duplication; and that duplication is unavoidable if you start by imposing the statutory duty under Clause 3(1)(d) on the Law Commission. I think there is a point of real difficulty here to which I hope the noble and learned Lord will give further consideration.
§ LORD MORRIS OF BORTH-Y-GEST
Whatever form of words the Committee may decide to adopt in regard to this matter, I would express the hope that the Committee would feel it very important that the Law Commissions should have control over the planning of Statute Law revision and of consolidation. In the body of the clause, in defining the functions of the Commissions, priority is given to taking and keeping under review:all the law with which they are respectively concerned with a view to its systematic development and reform".That is of prime importance. But in the body of the clause later words are:the repeal of obsolete and unnecessary enactments…"—that is Statute Law revision—and,… the reduction of the number of separate enactments…"—that, I think, is consolidation. I think everyone recognises that there is a great need to-day for a speeding up in the process of Statute Law revision and of consolidation. Examples were given by the noble and learned Lord the Lord Chancellor when he moved the Second 565 Reading of this Bill. The whole policy, the whole timing, is dependent to-day upon the supply of Parliamentary draftsmen, but that there is a need for more to be done I should have thought was beyond all question.
In the last few years the approximate number both of Statute Law Revision Bills and of Consolidation Bills has been five a year. I would submit that that is a woefully inadequate amount of Statute Law revision and consolidation. Your Lordships know the three ways in which the Consolidation Committee deals with those. There are, first of all, Statute Law Revision Bills. They are concerned not with altering the law, but simply with cutting out the dead wood. They do not change the law at all. I do not regard this as reform in the real sense, in the sense of altering the law, because nothing that is done by way of Statute Law revision or by way of consolidation alters the law.
So far as consolidation is concerned, it may be in two forms—one, pure consolidation, and the other, consolidation under the Act of 1949, which has been mentioned. But the changes that can be made in consolidating under the 1949 Act can be only minor alterations and amendments, and it is the duty of the Consolidation Committee to report to your Lordships' House if there is any change proposed which involves an amendment of the law which ought to be brought to the notice of your Lordships. So Statute Law revision and consolidation do not change the law. They tidy up the law. They make it more convenient to find the law.
But all that work, I would submit, must be done on a planned basis. At the present time the planning is really done by the Parliamentary draftsmen. They are highly skilled. I would respectfully endorsee very thing that has been said by my noble and learned friend Lord Simonds in regard to their skill. They plan the programmes and they do it extremely well, if I may most respectfully say so. I think that they will have to continue to do it in the future. They are the only people who know, from the purely drafting point of view, what is essential to put in, and I would submit to your Lordships that they ought to be linked up with any planning of changes in the law and reform of the law.
566 I was glad to hear from the noble and learned Lord the Lord Chancellor that it is hoped to have more Parliamentary draftsmen and that some will be attached to the Law Commission. So, while hoping that some form of words might be adopted, possibly on the lines suggested by my noble and learned friend Lord Simonds, I would hope that in the result nothing is done to take away from the Law Commission the work of planning in regard to consolidation and Statute Law revision and, in doing that work, the assistance of and guidance of the skilled Parliamentary draftsmen.
I am sorry that I have taken a certain amount of your Lordships' time. I have done so only because, possibly, I speak for those noble Lords who sit on the Consolidation Committee, and, as I have said, we are charged with the responsibility of dealing with two forms of Consolidation Bills and Statute Law Revision Bills. The noble Lord, Lord Chorley, spoke about Statute Law revision, but, of course, in Statute Law revision there cannot be a change of the law. The whole essence of it is that the only Acts to be included in a Statute Law Revision Bill are those that the Consolidation Committee can assure your Lordships are no longer of effect, are dead wood—are obsolete, superseded or unnecessary. All this work is done under the guidance of these skilled draftsmen, and I would hope for the maximum co-operation between the Law Commission and the draftsmen.
§ VISCOUNT SIMONDS
I am sure that we are all grateful to the noble and learned Lord, Lord Morris of Borth-yGest, to whom we owe much as chairman of the Joint Committee which sits on Consolidation Bills. I think that I am right in assuming that the work to be undertaken under paragraph (d) is consolidation in the sense in which it is now carried on—that is to say, consolidation with such alterations as the Act of 1949 permits—that and nothing else. Of course, they also prepare programmes. Again, that is just exactly what the Parliamentary draftsmen do, and they are in close touch all the time with the Government Departments. They know where the shoe pinches. Equally, although the Statute Law Committee sits for a very short time, there are among its members representatives of the various 567 departments. There are always representatives of the Treasury, the Board of Trade and so on, so that there we have all the wisdom necessary to determine what shall be the Consolidation Bills for the time being.
Of course, one can take a wider view and say that we should have a ten-year or twenty-year programme—so be it; but that does not the least bit touch the point which I venture to make, that there is likely to be confusion, if not chaos, when these two bodies are at work, unless the Lord Chancellor keeps control by the admission of such words as I have suggested. Although he was not conciliatory, I did not hear one word to suggest that they could possibly do him any harm, if they were put in. They might help; they could do no harm whatever. Therefore, I would ask the noble and learned Lord the Lord Chancellor to consider whether these words should not be inserted in the Bill, and bring the matter up again on Report. I think that, after reflection, he would see the possibility of confusion, which could be easily avoided by the insertion of four or five simple words. I think that we on this side would regard him as more conciliatory than we have hitherto thought him, if he were to consider this and if we had some hope that he would consider it favourably.
§ THE LORD CHANCELLOR
Certainly I am most grateful to all noble Lords who have taken part in this discussion, particularly, if I may say so, to the noble and learned Lord, Lord Morris of Borth-y-Gest, with his great learning and experience in this field. I should like to consider everything that has been said. It is easier to consider it when in writing than when one hears it. I am certainly desirous of improving the clause so far as it can be improved and I should like an opportunity of considering this, I hope, favourably.
§ VISCOUNT SIMONDS
I am much obliged to the noble and learned Lord. In these circumstances, I ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 5.58 p.m.
§ VISCOUNT DILHORNE
moved, in subsection (1)(e), to leave out "assistance" 568 and insert "advice and information". The noble and learned Viscount said: I think that it would be convenient to the Committee if we discussed Amendments Nos. 11, 12 and 13 together. They are all Amendments to the same paragraph and they are all fairly closely related, although I would explain why I have tabled each Amendment in terms.
§ THE LORD CHANCELLOR
Will the noble and learned Viscount allow me to interrupt him? I do not object to that course at all. Though I have never seen any difference between the wording in the existing paragraph and that proposed in this Amendment, it does not seem to me to make any difference. Therefore, I was not proposing to oppose that Amendment.
§ VISCOUNT DILHORNE
I take it from that that the noble and learned Lord will accept Amendment No. 11. I am obliged. That will save a little time. The Amendment really replaces the word "assistance", which I think is very general and indefinite, with the words which the noble and learned Lord himself used in explaining what he meant by assistance. Therefore, I had some hope that the noble Lord would accept it. I thank him, and say no more about that.
Your Lordships will see that the clause, as so amended, would read as follows:to provide advice and information to government departments and, at the request of the Minister, to other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law".I have tabled Amendments to leave out the word "and", and to leave out the words which follow from "Minister" to the end of line 4. So that paragraph (e) would then read:to provide advice and information to government departments at the request of the Minister…I feel it is desirable that the Lord Chancellor, the Secretary of State and the Lord Advocate should be able to act as a filter to protect the Law Commissioners from being inundated with all sorts of requests, which they would be under a statutory duty to comply with, by Government Departments. There is not much in that, but I think it would be an improvement.
Then the third Amendment, which is to leave out the words from "Minister" to the end of line 4, restricts the clause to providing advice and information to 569 Government Departments. The Bill proposes that these Law Commissions should be under a statutory duty, at the request of the Minister, to provide assistanceto other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law ".Surely that is most unusual. To impose on the Law Commissions of England and Scotland this duty of assisting other authorities or bodies concerned with proposals for the reform of the law is, surely, almost without precedent.
It would enable—would it not?—the Law Commission to be required to give advice and information to outside bodies, such as the Society of Labour Lawyers, the Inns of Court Conservative and Unionist Association, and any kind of body. What can be the need of that? Is it really part of the Law Commission's function? The Law Commission's function is, I think, fully dealt with in the first part of subsection (1). Here we are going into a quite different field. It is to be a sort of public servant to any other authority, apart from Government Departments or bodies concerned with proposals for there form of the law. I think that this goes much too far, and I hope the noble Lord will agree to limit it as I suggest. I beg to move the first of the Amendments.
Page 3, line 1, leave out ("assistance") and insert ("advice and information")—(Viscount Dilhorne.)
§ THE LORD CHANCELLOR
So far as Amendment No. 11 is concerned, as I have said, the word "assistance" was intended to cover "advice and information". It does not seem to me to matter which phrase is used, and I am happy to accept the Amendment.
The second Amendment is, I agree, a very small matter. It is the question whether, if a Government Department want some information from the Law Commission, they can write and ask for it, or whether they have to write to the Lord Chancellor, who must write to the Law Commission. The same would apply, I suppose, on the telephone: they would not be allowed to ring up the Law Commission, but would have to ring up the Lord Chancellor, and the Lord Chancellor would ring up the Law 570 Commission. I should have thought that the Amendment was only introducing one additional letter, and I cannot see that it matters very much either way. I cannot see any objection to this. It may, of course, have the effect of stopping the Law Commission from saying: "We are sorry, but we are too busy to help you".
While agreeing that the Lord Chancellor is the Minister responsible for the Law Commission—and, answering what I should have answered earlier, it will be for him to answer in Parliament any questions that may be asked in relation to the Law Commission—I should not have thought that any harm could be done by allowing Government Departments to ask the Law Commission for some specific information without everything having to be duplicated by going through the Lord Chancellor.
With regard to the last provision in the Bill as it stands, that the Commissioners should be entitled to provide assistance and information to other authorities or bodies concerned with proposals for the reform of the law, that, as your Lordships will have observed, is to apply only at the request of the Minister. It is not proposed that the Law Commission should go about helping the Band of Hope or one or two other bodies which I think were suggested, humorously, in another place. It is intended to cover a body like a Royal Commission. If the Government have appointed a Royal Commission on some subject, and if the Royal Commission desire, for example, to be informed of what comparative law of other countries is on a particular point—or even, I suppose, English law—then it would seem desirable that at the request of the Minister, and only at the request of the Minister, the Law Commission should be under a duty to provide such information. It is all safeguarded by the fact that this can happen only at the request of the Lord Chancellor. But if there is a Royal Commission, or some body of that kind, which desires assistance in the field of law from the independent body which the Law Commission will be, it would seem desirable so to provide in the Bill.
§ THE EARL OF SWINTON
I hope that in the interests of the success of his own Bill the Lord Chancellor will reconsider the words "authorities" and "bodies". 571 His intentions, of course, are strictly honourable and reasonable; and, obviously, if there is a Royal Commission sitting on some legal matter, or on something impinging on legal matters, it is desirable that they should have the help of this distinguished body. I should have thought that this could be done without putting any words in the Bill. I appreciate that the Lord Chancellor says he has no intention of roaming wide; of telling the Commission to go and help Tom, Dick and Harry. I am sure that, the longer he is in office (and on public, but not on personal, grounds, I hope that it will not be for too long), the more he will find that when there is a power for a Minister to do something the Minister is badgered to do it, and particularly in this sort of business. Every kind of "do-gooder" will come along and say: "Cannot we have these nice Commissioners to help us in our work?"
You get "cranks" coming along. The first thing they do is to set up a society to try to get the law reformed. One gets (this applies even to old people like myself) letters every second day from some perfectly ridiculous institution, or, still worse, some section of an institution that has hitherto been tolerably reputable and sensible, asking for the most absurd reforms. Then they try to get somebody in your Lordships' House or in the other place interested—and I am afraid there are unwise persons in both places who will sometimes lend themselves to this sort of thing. They get people to go badgering, lobbying and asking endless questions. If these words are there, one of these ridiculous societies will get half-a-dozen Members of the other place—I do not say necessarily of the Lord Chancellor's own Party; but there will be some there, and there will be others elsewhere—who will be badgering and asking, "Why has not the Lord Chancellor agreed to the Commissioners doing this and that?" He really will be storing up unnecessary trouble for himself if he allows words of this kind to stand. That is the last thing the Lord Chancellor wants; and, believe me! it is the last thing we want for the Lord Chancellor, because we want this experiment to succeed. I would say that the first element of success is: do not try to get it to do too much.
§ 6.10 p.m.
§ VISCOUNT SIMONDS
May I add a few words to the words of wisdom that have fallen from my noble friend Lord Swinton, who has so vast an experience of administration? I would direct my attention to something quite different. It appears to me that paragraph (e) departs altogether from the purpose of the clause. The clause is one which prescribes the duty of the Commissioners:to take and keep under review all the law",and for that purpose to do a number of things. How in the world do they keep the law under review by giving assistance to other parties? Surely, it is topsy-turvy. They keep the law in review, and are enabled to do the work which is prescribed, if they get assistance from other parties; if they get the help to which they are entitled. On the contrary, this is making them a kind of citizens' advice bureau; and that, surely, is not the intention.
I am quite sure, from my much shorter but still substantial experience, that my noble friend Lord Swinton is entirely right when he says there will be great pressure put upon the Lord Chancellor. The noble and learned Lord will not think I am making any suggestion against him: his probity and integrity are beyond reproach. But unless Lord Chancellors have much changed since my time, they are liable to human weaknesses and follies; and an error of judgment is so easy under pressure. It will be so easy to require the Law Commission to give advice to some society, and then to another society; and then you have an avalanche. I hope that the noble and learned Lord will listen to Lord Swinton's wisdom, if not to me, and agree to delete this wholly superfluous and incongruous clause.
§ LORD CHORLEY
I think the answer to the noble and learned Viscount is that the job of this Commission is not just to review the law, but to take active steps to get it reformed. I am a little afraid that the noble and learned Lord the Lord Chancellor has possibly given too much away in taking out the word "assistance". He referred earlier this afternoon to the work which is being done by the New York Commission, which has now been in existence for, I think, over thirty years. As general editor of the Modern Law Review, I took the 573 opportunity of reprinting copies of an article which we published in the January number of that Review for, I hope, the assistance of your Lordships in the consideration of this Bill. Copies were in the Printed Paper Office, and I know that some of your Lordships, at any rate, took them away, and, I hope, read them.
Those of you who have done so will remember that the valuable work which has been done by the New York Commissioners has been enormously assisted by the fact that they have been able to put out to serious legal bodies the job of advising them and, indeed, preparing the basic work which is needed before law reform can be carried through. Law reform is a difficult business, which requires detailed work and planning; it cannot be done "off the cuff" in the way that some people seem to think is possible. In my view, it is essential that the new Commission should have the opportunity and be empowered to obtain assistance in the same way. If they are not, they are going to find that their work is almost impossible. They will have to employ a tremendously large staff, with men of specialist experience and ability in many branches of the law —something that would really be altogether beyond them.
The Lord Chancellor referred to the Institute of International and Comparative Law, of which the noble and learned Lord, Lord Denning (who I think is now no longer with us; he was here earlier), is the Chairman, and which over recent years has been doing extremely valuable work. It might well be quite essential that in regard to some particular matter of Private International Law the new Commission should have a basic research made; research which none of their members was qualified to make, and which it would he difficult for them to recruit lawyers to do. Obviously, if they could put such research out to the Institute of International and Comparative Law, that would be a tremendous help to them. But, of course, this is going to be a cooperative effort. They have to be able to lend assistance in various ways, because the Institute is not a wealthy organisation, able to carry out efforts of this kind without assistance, both financial and administrative, from the Commission itself.
574 It seems to me that this is much more at the centre of the job which the Commission have to do than the sort of thing which the noble Earl, Lord Swinton, was picturing, of hare-brained societies coming along with their own schemes. It will not be very difficult to turn them down. If the Commission are not able to look at these schemes very quickly, and to decide that they are not proposals which they wish to assist; if they are not able to take a strong line with people of that kind, they will not be able to do the job which Parliament is going to entrust to them. Therefore, I think the real danger is that, if we go too far with proposals of this kind we shall hamstring the Commission and prevent them from getting the sort of assistance from organisations like the Institute of International and Comparative Law, without which they will not be able to do their work efficiently.
§ 6.17 p.m.
§ VISCOUNT DILHORNE
The first part of the speech of the noble Lord, Lord Chorley, seemed to be devoted to whether or not the Commission should be able to obtain assistance from outside bodies. The clause we are considering is not a clause which deals with the Commissioners obtaining assistance from outside bodies, but with the question of whether they should provide—
§ VISCOUNT DILHORNE
The question whether they should provide assistance to outside bodies. That is the wording of the clause to which the Amendment is directed. The first part of the noble Lord's speech was entirely directed to the question of whether or not the Law Commissioners should be able to obtain information and assistance. That is not in issue. The noble Lord sought to justify the breadth of this clause on entirely different grounds from those put forward by the noble and learned Lord, the Lord Chancellor. The noble Lord, Lord Chorley, said that if the Institute was to provide assistance to the Commissioners it must get a quid pro quo by advice and information, presumably, from the Commissioners. The Lord Chancellor did not put forward that kind of argument at all. He said that the words 575other authorities or bodies concerned with proposals for the reform or amendment of any branch of the lawwere directed to bodies such as a Royal Commission. I can see no objection to the Commission's being given power to provide assistance, in the sense of advice or information, to a Royal Commission or any other body constituted by the Government, or by the Crown. But I see the greatest objection to leaving it absolutely indefinite—which, of course, is what the noble Lord wants—so that it can apply to other authorities or bodies wholly unconnected with the Crown and the public service.
Secondly, there is surely great substance in the point raised by my noble and learned friend Lord Simonds in saying that paragraph (e) is wrongly placed.
§ LORD CHORLEY
The noble Viscount has overlooked the fact that the Minister has to be brought into this. As I said, this is a co-operative effort. If the Commission require assistance from the Institute, they go to the Minister and say, "This is the sort of work that is done better by the Institute. Will you authorise us to go to the Institute and give them some financial assistance and get this work done?"
§ VISCOUNT DILHORNE
I am afraid the noble Lord is still completely adrift. He has not realised that the noble and learned Lord the Lord Chancellor agreed to accept the Amendment changing the word "assistance" to "advice and information", and I do not think that either of those words covers financial assistance; so there can be no question under this clause of any of the concerns in which the noble Lord is interested getting financial assistance. I gave way because I thought his intervention was connected with the argument I was putting forward.
Surely, in any event, paragraph (e) is in the wrong place—for this reason. As my noble and learned friend Lord Simonds says, the provision of assistance to Government Departments and to Royal Commissions and others cannot be for the purpose of enabling the Commissions themselves tokeep under review all the law with which they are respectively concerned",and so on. This is perhaps a matter of small moment, but I think that paragraph 576 (e), if redrawn, ought to go in as a separate subsection and not as part of subsection (1).
To come to the substance of the matter, as to the first Amendment, No. 11, the noble and learned Lord kindly said that he will acceptit. I do not feel at all strongly about the second Amendment, and I certainly would not press that for that purpose. But I feel very strongly indeed about the wordsother authorities or bodies concerned with proposals for the reform…of the law".They are far too wide, and I think they should come out. If, as the noble and learned Lord says, he will give favourable consideration to the words of limitation such as I have suggested,other authorities or bodies appointed by the Crown or by the Governmentthen I will naturally leave that at this stage of the Bill.
§ LORD CONESFORD
Might I put one point to the noble and learned Lord? These words are all governed, are they not, by the words at the conclusion of line 27, "for that purpose"? Could the noble and learned Lord the Lord Chancellor give some example of where you could give advice and information to these outside bodies for the purpose as set out between lines 20 and 27 of the clause? I think the noble and learned Lord sees my point, because, unless there is that possibility, I cannot see what use can be made of this paragraph.
§ THE LORD CHANCELLOR
I do not think the paragraph is in the wrong place—that is not proposed under the Amendment—but I think there is a good deal in what has been said as to the rest. No. 11 I have accepted; No. 12 is not being pressed. As to No.13, the point is that this Law Commission have a very big planning job to do. They have to survey our law and draw up what may be a five-year programme and say, "This matter should be considered by the Law Reform Committee; that matter by the Criminal Law Reform Committee; this is more suited to a Government Department; on this subject we may have to employ the research facilities of one of the university law schools; that one depends in part on questions of policy which are not for us to decide; we think that ought to be considered by a Royal Commission, and that perhaps by a Select 577 Committee." They may want Law Reform Committees constituted similarly to the present one. There is a vast field to cover. They may, as part of the achievement of that programme, be required to provide advice and information to Government Departments, some of whom may on their own recommendation be carrying out one field of work, or to a body like a Royal Commission. I did not anticipate that this form of words would raise consequences so appalling as those foreseen by the noble Earl, Lord Swinton, but perhaps they will. I thought there was sufficient protection in the words, "at the request of the Minister".
§ THE LORD CHANCELLOR
I appreciate that. As at present advised I think all that was here in mind was Royal Commissions and Select Committees. This would be covered by the words proposed by the noble and learned Viscount, Lord Dilhorne, namely "constituted by the Government".
§ THE LORD CHANCELLOR
As at present advised I cannot see why that should not be done. That would, I think, meet the case, limiting in that way the purpose of the clause. Perhaps I may, there fore, think about that pending Report stage, being at the present moment inclined to accept that proposal.
§ VISCOUNT DILHORNE
I am grateful to the noble and learned Lord the Lord Chancellor for that. I will therefore only ask the Committee to accept Amendment No. 11, to which he has agreed. I will not press No. 12; I will ask leave to withdraw it, and I will also in one moment ask leave to withdraw No. 13. I would ask the noble and learned Lord to give a little more consideration as to whether paragraph (e) is in the right place. I do not think it is. There is no real issue about it here if we get the wording right. I think it ought to be a special subsection. That can be arranged, if the noble and learned Lord thinks fit, at a later stage.
§ On Question, Amendment agreed to.578
§ 6.27 p.m.
§ VISCOUNT DILHORNE
moved, in subsection (2), after "Commission and" to insert:submitted to him, and also any programmes prepared by the Commission as".The noble and learned Viscount said: This is an Amendment I think I can move quite shortly. Under subsection (2) of Clause 3 the Minister is required to lay before Parliamentany programmes prepared by the Commission and approved by him and any proposals for reform formulated by the Commission pursuant to such programmes.That means that Parliament will not see the programmes laid before the Lord Chancellor or the Secretary of State by the respective Commissions. Parliament will see only the programmes which have been approved, it may be substantially amended, by the Ministers. I think it would be desirable for Parliament to see the programmes put forward by these two Commissions. We shall all want to take a great deal of interest in their work. I cannot see what objection there can be to this Amendment. We shall want to see to what extent the Commission's programme has been modified by the Minister. I cannot see why Parliament should not know that. It may be that Parliament will want to press the Lord Chancellor to change his mind and make fewer modifications.
What will happen if this Amendment is carried or accepted is that Parliament will retain some control over the programmes on which the Commissions embark and there will be power to comment if, for instance, the Commission are seeking to embark on work with high political content. It does not really, to my mind, suffice to have a provision like one has in subsection (3), which provides for an annual report being made by the Commission, in which they can draw attention, if they wish, to the programmes they submitted to the Lord Chancellor, and it might be—I hope it will not be—to the emasculated condition in which they were approved of by him.
Supposing they did do that, it would be far too late to take any effective action. I shall wait, of course, to hear what the Lord Chancellor says, but I can see no objection to its being required that the 579 programmes submitted to the Secretary of State for Scotland and the Lord Chancellor should be laid before Parliament, and that then we should have laid before Parliament the programme as approved by the Ministers. That will give Parliament a chance of suggesting that Ministers concerned might conceivably change their minds in one direction or another. It would also give Parliament an opportunity of being kept fully informed of how these Commissions are going on. I ask the Lord Chancellor to believe that this is not at all a hostile Amendment, but it is one which I commend to the Committee because I think it is a desirable improvement to the Bill. I beg to move.
Page 3, line 9, after first ("and") insert the said words.—(Viscount Dilhorne.)
§ THE LORD CHANCELLOR
Now that we have abandoned Party politics think that we are getting on rather well with the Bill itself. What is proposed is that the Law Commission should formulate what might be called a draft programme. This will then be considered and, if thought fit, approved by the Lord Chancellor. Obviously, from the point of view of real life he will not approve it until he has consulted any other Ministers who might be affected by it. Once it has been approved, then the approved programme will be published so that everybody will know what the Law Commission is going to do for the next five years.
Whatever they do—that is to say, any recommendations they make—whether the Government of the day like it or not, is to be published. In addition to that they will make an Annual Report to Parliament. The only thing which is not going to be published is their original draft programme put before the Government of the day. The reason for that is simply a matter of ministerial responsibility: that no Government is going to be dictated to by the Law Commission. The Government might have good reasons for not wanting a Law Commission to consider a particular subject at a particular time.
With respect, I do not see how any Government could ever be put into the position in which even the original draft proposals must be published and publicly 580 discussed. For example, the Law Commission might say, "Well, we think that trade union law is in a mess and we had better have a look at that." It might be that the Government of the day intended in the next Queen's Speech to propose the setting up of a Royal Commission on trade union law. We cannot expect any Government of the day to discuss in public what its tentative proposals for the next Queen's Speech might be, because no Government would be put in that position. And, of course, there might at any time be a number of things going on in different Government Departments which, from the Government's point of view, would make it undesirable, or perhaps unnecessary, for a Law Commission to be concerned with that particular subject at that particular time.
Therefore, I do not think that, whatever Government was in power, it could depart from this position. Obviously, there may be purely political reasons why a Government does not want time spent on a particular subject. But once the Government of the day has approved the programme, then the programme will be published so that everybody can see and comment on what the future proeramme of the Law Commission is; whatever recommendations they may make, whether the Government of the day likes it or not, they will be published. In addition, there will be an Annual Report to Parliament, which will also be published. If the Law Commission felt strongly about it, I do not know that there would he anything to stop them in their Annual Report from saying, "In our last draft programme we were particularly anxious to consider such-and-such a subject, but the Government would not let us". Whether that would be a responsible thing to do I do not know; but, strictly speaking, I do not think there would be anything to stop them if they felt strongly enough about it.
However, no Government has had to consider its precise relations with the Law Commission, but I venture to think that no Government could be put in a position in which it had to discuss in public what its legislative programme a year or two ahead might be. Therefore, I would suggest to your Lordships that the Law Commission, and from their point of view the Lord Chancellor, are being perfectly properly treated in having secured that 581 the programme itself, when approved, will be published; and, secondly, that whatever reports they make will not go to Government Departments to sec whether or not they like them, but will be published and can be discussed in Parliament; and thirdly, that there will be an Annual Report.
§ VISCOUNT SIMONDS
What the Lord Chancellor has said no doubt has a great deal in it, but it raises in my mind a difficult question of what is the real relationship and status of the Law Commission. They are not like a Government Department: they are not responsible in the sense in which a Government Department is responsible to its Minister. The Bill does not provide for the submission of draft programmes; it provides for the submission of programmes to the Minister. They are an independent body submitting programmes to the Minister. It seems to me that Parliament is entitled to know what this independent body has submitted as its programme, and it is entitled to know why the Minister, if he rejects any part of it, has rejected it.
I must say that I think that this is a rather evenly balanced question, depending largely on what is the true status of the Law Commission. And if it is conceded, as I think it must be, that they are not like a Government Department, but are a wholly independent body, then there is a great deal to be said for the action of the Minister to be fully revealed. Has he accepted this programme, or has he not accepted it? Has he accepted it in part, or has he rejected part; and what parts? For myself, I am not convinced by the Lord Chancellor's argument.
§ 6.37 p.m.
§ VISCOUNT DILHORNE
I think that this is a most difficult point. I hope that I shall not be accused of reviving any Party political issues by saying that I find great difficulty in accepting in its entirety what the Lord Chancellor has said—for this reason. If the Government set up a Royal Commission to deal with the law on trade unions, whether or not the Government like the Report of that Commission, it will be published, and the Government will make up its mind as to what action, if any, it takes on that Report. Instead of having a Royal Com- 582 mission to consider one aspect or branch of the law, we are to have a Law Commission whose task is to review the whole of our law. As I see it, the programme for which they will ask approval will set out how they intend to tackle that task, what fields of law they propose to embark on, and in what order. I must say that I cannot see that disclosure of that matter is going to have any serious disadvantages. I can see that it might conceivably be embarrassing to the Government on occasions to say why they have not approved a particular part of the programme. But I think the interest in the programmes, particularly as they start, will be such that there will be a real desire to know what the Commission have proposed before it has been cut down—or, it may be, enlarged—by the Lord Chancellor.
I think that perhaps the best thing is for me to ask leave to withdraw the Amendment, with the possibility of putting it down again, because I should like to consider more fully what the noble and learned Lord has said. I am most reluctant at the moment not to press for disclosure of the programmes, because it is only if we see the programmes as drawn up by these independent bodies that we shall know how they are functioning on their own. But, subject to that, I ask leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 6.40 p.m.
VISCOUNT DILHORNE moved, after subsection (2), to insert:
( ) Notwithstanding the approval by the Minister of a programme prepared by the Commission, the Minister may alter, modify or cancel the programme so approved and may require the Commission to undertake the examination of particular branches of the law and the formulation by means of draft Bills or otherwise of proposals for reform therein although such branches of the law were not included in any programme approved by him.
§ The noble and learned Viscount said: This is the last Amendment on the Order Paper which I think it is necessary for me to move. Whilst it is true that we have made considerable progress to-day, it is very largely due to the attitude adopted by the noble and learned Lord the Lord Chancellor towards our proposals, and we are very grateful to him.
§ I regard this is an important Amendment, for this reason. Under the Bill as 583 it stands, the programme is submitted to the Lord Chancellor, is approved, it may be, in toto by him; and then the Commission set to it to carry out the programme as approved. It may be a three-year, five-year or ten-year programme—one does not know; but there is no power in this Bill, so far as I can see, for any alteration of that programme to take place once it has been approved. There is no power to give directions to the Commission once they have embarked on a programme. It may be that in the course of time something will appear to be more urgent than the work upon which they are immediately engaged. I think that there should be some power for the Ministers concerned to vary the programmes which they have approved.
§ This is particularly important if one looks to the future, for this is a long term matter. It may be that one of the noble and learned Lord's successors may take a somewhat different view of the priorities—and this may also apply to the Secretary of State for Scotland—and may want to say to the Law Commission, "I do not think that matter is particularly important; this particular subject is much more important. Please get on with this one." Under the Bill as it is now drawn, he cannot do that. Once the machine has started, so far as I can see, the machine rolls on. I move this Amendment in order to give Ministers power to give directions spelt out in much more detail than the power to give directions in the Nationalisation Acts.
Page 3, line 11, at end insert the said subsection.—(Viscount Dilhorne.)
§ THE LORD CHANCELLOR
This seems to me to be merely a technical matter. I am advised that all this is implied, and necessarily so. I have already taken advice from the Chief Parliamentary Draftsman.
§ THE LORD CHANCELLOR
My advice is that the Lord Chancellorand the Law Commission obviously have to work together. Circumstances may arise which may require some change of programme, and there is nothing in the Bill to stop that.
§ VISCOUNT DILHORNE
I am sorry, but I do not see anything in the Bill which implies that. In fact, as I read the language of the Bill, the implication is to the contrary effect: that once the programme has been approved they must carry it out. But at this hour I do not think we need spend much time in arguing about this matter. If the noble and learned Lord is in agreement with me as to what we want to achieve, we can no doubt consider further whether the Bill impliedly achieves it. Personally, I should prefer to see some express provision which would remove all doubt. But if there is no controversy about this, we can leave it to a later stage. On that basis, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 3, as amended, shall stand part of the Bill?
§ VISCOUNT DILHORNE
As I indicated earlier, I wish to raise certain questions on Clause 3. I think that this is the appropriate time to consider in more detail the Commission's functions. Although during the Second Reading debate the Lord Chancellor made great reference to the mass of delegated legislation, and to the fact that it was contained in 99 volumes, and so on, we have not heard, in the course of our discussions in Committee, a word about how this mass of delegated legislation is to be tackled. There is nothing in the Bill about it.
What is proposed to be done about this? Most of this delegated legislation is the responsibility of a particular Government Department in a particular field. For instance, if one may take the Ministry of Transport, all the mass of delegated legislation—regulations about lighting, construction and use of vehicles, road signs and everything else—comes under that Department. I am sure that I have the Lord Chancellor with me when I say that some of these matters are in a pretty good mess, and that there is, as much need for consolidation in the field of delegated legislation—and perhaps from the point of view of codification, too—as in the field of general Statute Law.
How is this going to be tackled? These particular fields are the responsibility of particular Departments—transport is only one of them. I do not think the 585 Ministry of Technology has yet put out any fungus of this kind, but no doubt it will. The Board of Trade is another. How are the Law Commissioners going to operate vis-à-vis these Government Departments in relation to their specialised subjects? It is important to get this clear, and I am asking these questions because I do not know how this is going to operate. The Law Commissioners are charged with reviewing all the law, which must include all the law that is there sponsibility of Government Departments. Are the Government Departments to answer the questions and interrogatories of the Law Commission with regard to their own particular province of law? I imagine that the answer to that is "Yes", and that the Law Commissioners will ask the Ministry of Transport for information about the mass of transport regulations.
But what happens then? Who is going to do the work? The Law Commission cannot tell the Government Department to consolidate certain branches of regulations, because the Minister in charge of that Department would not allow that to happen; or, if he were to agree to it, he would not allow it to happen without his consent. As many noble Lords know, the case occasionally arises when, as a lawyer in Government, one presses for a particular branch of the law to be brought up to date. The Government Department says, "Yes, we know that that ought to be brought up to date, but we ourselves, from our departmental point of view, regard this other branch as more important, and propose to deal with that first." Supposing under the Bill that kind of situation arises, who is to prevail—the Government Department, or the Law Commission? This is, of course, an important matter in regard to administration. I expect that the answer will be that the Government Departments will remain in complete control of that legislation for which they are primarily responsible.
I would accept that answer because I would not have expected the Lord Chancellor to be able to prevail on his colleagues to agree to anything else, but if that is what is going to happen then it seems to me it will be very difficult to get this overall supervision by the Law Com 586 missioners of the specialised fields of legislation which is in my view desirable. That is why I am asking the noble and learned Lord, even at this late hour, to say a little about this because I think it is very important to get the position quite clear.
Again there is this difficulty which must be faced. The noble and learned Lord the Lord Chancellor referred just now to the difficulty in which the Government might find themselves in publishing the fact that they had rejected certain proposals for the amendment of the law because they were intending to introduce legislation a little time a head and they did not want to show their hand. I think there was some force in that point, but again there is not much point in the Law Commission reviewing the law in a particular field if it is the intention of the Government Department to legislate in that field in the near future. It would be much better to do the review in the light of the Bill. Then, again, does that mean that the Government Departments will have to show their hand to these two Law Commissions and say to them, "We intend to try to get a place in the next Queen's Speech for this particular Bill"? If that is going to be said, it rather creates a precedent, does it not, for any Government to disclose before the Queen's Speech what is going to be in the next Governmentprogramme?—and these are outside bodies, independent Commissions.
Frankly, I am a little puzzled about how this will operate. We have talked already about Statute Law, but what is to be the relationship with the other two Committees? They are both high-powered Committees. I should like to have a clear answer on this. I imagine the noble and learned Lord intends to make use of these Committees, if possible. They are engaged in very useful and important work now, and if possible they will go on. In their working in the future will they be under the Law Commissions? Will the Law Commissions of five people in England and five people in Scotland—I will leave out the latter for the moment, because I do not want to get the noble Lord, Lord Hughes, back on to the Bench otherwise we might be a little later—but taking only the five Law Commissioners of England, will they be superimposed upon these two Law Reform Committees?
587 I am not at all sure that it will be satisfactory if these two Law Reform Committees have to take instructions from the two Law Reform Commissions. The two Committees are very high-powered, consisting of a number of Lords Justices, and I am a little anxious about the relationship between the two. I agree that in dealing with these bodies in the future it will be convenient for the Law Commission to get round the table with them and work out a programme, but who will have the final say? Will it be the Law Commission or can the Law Reform Committees refer to the Lord Chancellor and get him to arbitrate? How does the Lord Chancellor envisage the Law Commission working with these other two Committees? I am afraid I have spoken for far too long, but I have tried to confine my remarks to the shortest possible context and I raise these questions because, although a great deal of discussion has taken place upon this Bill, I do not think as yet these questions have actually been answered.
§ THE LORD CHANCELLOR
I will reply very shortly indeed. As the Law, Commission will be concerned with the whole of our law, that of course includes delegated legislation. So far as disclosure by Governments to the Law Commission is concerned, on private matters I should think that was most unlikely. The Lord Chancellor, of course, will know the position. With regard to the Law Reform Committees, it will be the Law Commission which will be responsible in substance for the state of our law. If I am asked whether in those circumstances the Law Reform Committee will continue, I should say in so far as it is a matter for me there are a lot of things I am not going to decide without advice from the Law Commission, because the Law Commissioners will be much cleverer people than I am and it is no use not being advised by them. But the very strong probability is that the Law Commission will want the Law Reform Committees retained, because the whole ground to be covered is so enormous that they will want every possible help they can get. They will not give orders, but I apprehend they may well say, in drawing up their programme, "We suggest that subject A is one that the Law Reform Committee should be asked to look at, subject 588 B the Criminal Law Revision Committee, subject C a particular Government Department, and subject D we propose to tackle ourselves".
If they have that programme, and if the Lord Chancellor approves it, then the Law. Reform Committee, which is a Departmental Committee of the Lord Chancellor, will be asked by the Lord Chancellor to do it. Naturally all this depends on good sense and good will. The Law Commission would not be shocked, I suppose, if when the Lord Chancellor asked for a certain subject to be looked at, the answer was, "We will not"; but one is presuming a certain amount of common sense and that people will work together.
With regard to a possible conflict with a Government Department on statutory rules and orders, at the moment the Select Committee on Statutory Instruments in another place makes itself responsible for urging Government Departments to consolidate the Statutory Instruments. I do not think that work has cone ahead as fast as a great many people would like, and I hope the appointment of a Law Commission will stimulate that activity as it may others. If there is a conflict between the Lord Chancellor representing in that sense the Law Commission and a Government Department it would have to be resolved. I am a fraid, in the only way in which disputes between Ministers can be resolved.
§ Clause 3, as amended, agreed to.
§ Clause 4 [Remuneration and pensions of Commissioners]:
§ 6.58 p.m.
§ VISCOUNT DILHORNE
I do not think I need move the last Amendment. It is related to another Amendment concerning the word "high", and I think we had better look at it when we table the other Amendment.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ VISCOUNT DILHORNE
I should be grateful if the noble and learned Lord would consider this point. As he will see from subsection (3), a statement is to he laid before Parliament ofthe amount of the pension, allowance or gratuity, or contributions or other payments towards the pension, allowance or gratuity, payable in pursuance of the determination.589 What is omitted from that is a statement of the remuneration which has been paid. There are many precedents for that statement being made. The noble and learned Lord will find in the Nationalisation Acts a requirement that a statement should be laid before Parliament as to the remuneration of these Committees. I do not know why there is no similar provision here. The provision here requires the pension allowance to be made public but not the remuneration. I should be glad if the noble and learned Lord would consider whether such an Amendment should be made.
§ Clause 4 agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported, with Amendments.