§ 4.52 p.m.
§ VISCOUNT DILHORNErose to draw attention to theFirst Programme of the Law Commission;and to move for Papers. The noble and learned Viscount said: My Lords, several weeks ago now there was laid before Parliament theFirst Programme of the Law Commissionapproved by the noble and learned Lord the Lord Chancellor. It is an important document and one that I feel deserves consideration by your Lordships. I therefore tabled this Motion to draw attention to it. Seldom, if ever, have I, when in Opposition, tabled a Motion so innocuous in its wording.
§ VISCOUNT DILHORNE
I gather that my comment is endorsed from the Benches opposite.
427 I move this Motion in no spirit of hostility, but in the hope that we may be able to elicit from the noble and learned Lord the Lord Chancellor some more information than is contained in the Programme itself. This is, of course, a subject of the greatest interest to lawyers. I do not know whether that is a sufficient disclosure of interest to satisfy the Leader of the House, but I hope that to-day we shall be spared any accusation of being inspired by improper motives.
My Lords, my first reaction on seeing this Programme was that it was indeed a formidable one. If the work outlined is to be properly done—and it will not be of very much value unless it is properly done—it will take, I should think, a very long time, indeed years, to accomplish. I should be interested to know whether the Lord Chancellor agrees with this, and whether he will tell us how long he estimates it will take for this programme to be implemented.
We are told in a note by the Commissioners which prefaces the Programme:We have excluded those projects on which we cannot expect to make an immediate start.That would seem to imply that they have already started on all these projects. My Lords, if this is so, I must say that I doubt the wisdom of tackling this Programme in this way. I should have thought that it would have been better for them to tackle these projects one by one, or at least by grouping those in the same field. If this is, in fact, the way they propose to do it, I ask the noble and learned Lord the Lord Chancellor to tell us the order in which they are taking the various subjects.
I am sure that the five men who are Commissioners would not claim to be experts in all the branches of law covered by this programme. With regard to some of the projects, I should have thought it wise to have a committee of acknowledged experts in the particular field appointed to report to the Commission. But that, if I read this Programme correctly, is not being done, save in a few instances. The Commission propose to shoulder the burden of the greater part of this work themselves, without the assistance of any such committee, and I fear that time may show that they really have taken too much upon themselves.
428 May I draw the attention of your Lordships to what the Commission is undertaking? First, there is the codification of the law of contract. That by itself, as I think all noble Lords will agree, is an immense task. They propose to examine the law of contract, of quasi-contract and of such other topics as may appear, in the course of their examination, to be inseparably connected with them, with a view to their codification. While I agree that the codification of this branch of the law is very desirable, I feel that if the five Commissioners devoted the whole of their energies to this alone, it would take them a long time to do it properly. I do not know— I should be interested to hear—whether the noble and learned Lord, the Lord Chancellor, agrees with that. I hope that he will say whether he does or not.
My Lords, codification of the existing law is one thing, and I hope that the noble and learned Lord the Lord Chancellor will tell us whether it is codification of the existing law that is intended, or is it codification of the existing law with such changes in it as may commend themselves to the Commission? If it is the latter, then I would strike a note of warning. The law of contract is not just "lawyer's law." I do not suppose that there is any branch of the law which affects people more in their daily lives. It is of the greatest importance to the business community, and if in this process of codification the rights of individuals are to be substantially altered, it will be the duty of Parliament to give the closest consideration to the changes that are proposed. I do not think that a Bill making such changes should be subjected to any accelerated Parliamentary procedure. Before any such changes are made by the Commission, I think it essential that there should be full consultation—consultation in the fullest sense —with the business interests and with others, and I would ask the Lord Chancellor to tell us what is being done, and what it is proposed to do, in the way of consultation.
The next item on the Programme is headed "Exemption by contract from Common Law liabilities." Here the Commission are to have the assistance of a committee, but they are themselves going 429 to consider the desirability of any extension or alteration of the doctrine of fundamental breach. This is, I think, a comparatively new doctrine, and one that has yet to be considered by your Lordships sitting judicially. I understand that it is likely to be considered soon.
This heading of "Exemption by contract from Common Law liabilities" involves the consideration of a big and an intricate subject. In my view, it is a very important one, and I would give it priority over the codification of the law of contract. I feel some doubt about the division of consideration of this subject between the Commission and an Inter-departmental Committee, for it seems to me that the work is liable to overlap and that the desirability of any extension or alteration of the doctrine of fundamental breach may depend, to some extent at least, on the views of the Inter-departmental Committee on the prohibition and regulation of clauses exempting from, or limiting, liability for negligence.
The third item in the Programme is headed "Consideration, third party rights in contract and contracts under seal." This again is being dealt with by the five Commissioners and must entail a great deal of work. These three projects I have mentioned all relate to the law of contract and could be grouped together. They have not been, and I should like to know what exactly is contemplated. Is the codification of the law of contract going to be completed as a separate task, and are we to have separate and distinct reports dealing with the other two subjects I have mentioned; or is the codification going to embody the recommendations of the Commission on these two subjects? I think that this is important, and I hope that the Lord Chancellor will tell us what is intended.
The next item in the Programme is headed "Civil liability for dangerous things and activities". This, too, is an important branch of the law, and the Commission are going to undertake a basic examination of it. This will be a difficult but important piece of work, and if this and nothing else was going to be done by the five Commissioners, it would take up a very great deal of their time. Here again I would ask the noble and learned Lord to say what process of consultation with outside bodies is envisaged 430 about this. I assume that the Bar Council and the Law Society will be consulted, and that careful consideration will be given to their views. But this is a matter which is of great importance to the public and the recommendations of the Commission may greatly affect the rights and liabilities of individuals. I hope that the noble and learned Lord will be able to give an assurance that the Bar Council and the Law Society will be fully consulted, and also that the Commission will invite those outside the legal world to submit their views, if they are likely to be able to contribute anything of value.
Your Lordships will see that the next item is headed "Civil liability for animals". The Commission recognise that reform in this field is controversial. I know it is. Again it is very necessary that, before the Commission make recommendations on this, there should be the fullest consultation with those most likely to be affected. Can the noble and learned Lord give an assurance that the National Farmers' Union will be consulted and asked for their views? If the Commission are going to propose something which materially affects the liability of farmers, then I think it will be very important, if possible, to get the agreement of the N.F.U. to the changes proposed before they see the light of day. For if this is not done, then the passage of a Bill to implement the Commission's recommendations will indeed be controversial.
The next item in the Programme is "Personal injury litigation". I am glad that an examination is to be made of jurisdiction and procedure in personal injury actions with a view to simplification and expedition—though, of course, it is not every injured plantiff who wants his case to come on soon, because he may want time to elapse so that the full extent of the injuries he has suffered may be appreciated. But anything one can do to reduce the expense and time of pretrial proceedings, without impairing the proper conduct of the trial, and without impairing the ability of the court to make a proper assessment of the evidence, is surely to be welcomed.
While I am not seeking to criticise the content of this Programme, I must say that I should have liked to see a little more emphasis on consideration by the Commission of methods by which the 431 proceedings in our civil courts, which vary as between Divisions, could be simplified and made less expensive for the litigant. The Commission are going to examine the methods and bases of assessment of damages for personal injury and the practice relating to that. That by itself is again another big and difficult task, which is bound to take considerable time; and here again I hope that there will be the fullest consultation.
If your Lordships will look at the Programme, you will see that this is not the end of the important projects which the Commission themselves are proposing to examine. I come back to the question I asked at the beginning of my speech: how long is it estimated that all this work will take? Are they working on all these projects at the same time, or is priority being given to some of them? If it is, I hope that the noble and learned Lord will tell us in what order they are being taken.
There are only two other headings in the Programme to which I intend to refer. One is "Codification of the law of landlord and tenant". The Commission are going to examine the law on waste and distress for rent. I welcome that. I think that this is a branch of the law that could well be examined.
But one of my objects in moving this Motion to-day is to seek to elicit from the noble and learned Lord the Lord Chancellor the way in which the Commission are acting in making an examination of this and the other subjects they are undertaking, and to find out what steps they are taking to ascertain the views of those best qualified to speak on those subjects. I hope that the noble and learned Lord will tell us about them. I know very little about the way in which the Commission are setting about their business, and I must confess to your Lordships that what little I do know does not fill me with very great confidence.
On September 30, the Ministry of Health wrote this letter to the secretaries of Regional Hospital Boards and of boards of governors of teaching hospitals. It is headed, "Law Commission Programme", and it reads as follows:Under Section 3 of the Law Commissions Act 1965 it is the duty of the Law Commission to prepare and submit programmes for the examination of different branches of the law 432 with a view to reform and programmes of consolidation and statute law revision. The Commission proposes to examine the law on waste and distress for rent and to assist them they have asked the Minister, as the owner of a considerable amount of land and property, to answer the questions in the attached questionnaires.We shall be glad if Secretaries of Boards will arrange for the required information to be provided forthwith. All questions should he answered as far as it is possible to do so, but particular regard should be paid to questions 1, 2, 4, 5(c), 13 and 14 of the questionnaire on distress for rent and general questions at A ' of the questionnaire on waste as between Landlord and Tenant. Replies should be tabulated to correspond with the headings and numbering in the two papers.It is anticipated that Boards' approaches to these problems in so far as they are encountered in the management of endowment fund property will not vary substantially from the practice followed in administering property held for hospital purposes on the Minister's behalf. If this is not the case, separate replies should be given for the two classes of property.The information, which will be collated in the Department, is required urgently and Secretaries are asked to submit replies to the Department as soon as possible and, at the latest by 22nd October, 1965.The first questionnaire to which I refer is headed "Questionnaire of the Law Commission on Waste as between Landlord and Tenant." So the Ministry of Health, if they read that, could not possibly have thought that this related to the disposal by the hospitals of pigswill or anything else. I should like to read to your Lordships the questions which the secretaries of the Regional Hospital Boards and of the boards of governors of teaching hospitals were required to answer by October 22, 1965. The questionnaire starts:A. General:1. What is the practical importance at the present time of a cause of action for waste in any of its forms:
- (i) voluntary
- (ii) permissive
- (iii) meliorating?2. Have you any record of cases within the last 20 years in which:433
- (i) damages have been recovered for waste
- (ii) an injunction has been granted to restrain waste
- (iii) there has been a dispute as to title as a result of change of user which constitutes waste?3. What are your views as to a proposal to replace the present law as to waste by a simple enunciation of the duties of a tenant in the form of two rules:I do not know what the views of the secretaries of the Regional Hospital Boards would be on matters on this sort, but I should not have thought that they would be of any great value in deciding whether or not a change of this law was desirable. The document continues:
- (i) the obligation of the tenant not physically to alter the property leased to the detriment of the reversioner without consent or statutory authority, or leave of the court
- (ii) the duty to use the premises in a tenant-like manner? "B.As affecting the tenant:
- "1. Is the present law unreasonably harsh upon the tenant?
- 2. Is the tenant generally aware of his obligations?
- " 3. Do tenants hesitate to improve property for fear of incurring liability for waste?C.As affecting, the landlord:
- " 1. Does the landlord generally protect himself against acts of waste by covenants in the lease or the tenancy agreement?
- " 2. Could this protection be adequately afforded by the two statutory rules as suggested?
- " 3. Do landlords in practice seek damages for breach of covenant rather than resort to the doctrine of waste?D.Special cases:What is the particular position in relation to:This is the first examination paper. The second examination paper, headed "Questionnaire by the Law Commission on Distress for Rent", occupies three pages of foolscap.
- " (1)mining leases;
- " (2)agricultural holdings? "
§ VISCOUNT DILHORNE
I do not intend to read any of them. This is the kind of examination paper that might be set to a number of people who wished to pass an examination. I am sure your Lordships will agree with me that it really serves no useful purpose to examine secretaries of Regional Hospital Boards upon these matters. The answers to these questionnaires were particularly required, as I have told your Lordships, by October 22.
To round off the picture, on October 15 the Ministry wrote a second letter. It was in these terms: 434We wrote to you on 30th September enclosing questionnaires prepared by the Law Commission in connection with consolidation and revision of the law on waste and distress for rent.While we hope that those Boards which are able to do so within the time allowed will comment on such of the questions as bear on their problems or experience, we realise that in the majority of cases Boards of Governors will only infrequently, if at all, have come up against the problems dealt with in the questionnaires. Where this is so, we would not expect Boards to attempt comprehensive answers to the questions posed.There it is, my Lords. It would seem that perhaps the Ministry at last appreciated that what they were asking for from these particular people would involve them in a great deal of labour. Perhaps they had had some reactions to their request from some of the secretaries of these Hospital Boards. But I wonder how much time of busy people has been taken up with this, and how much expense was involved.
I must say that it seems to me to have been very stupid. I wonder who was responsible for this. Quite clearly, the Government were, in some degree. No doubt the Commission wanted answers to their examination papers, and sent them out to Government Departments in the hope of getting some useful information from Government Departments. But was it really necessary for the Ministry of Health, for whom, of course, the Minister is responsible, to send there questionnaires out to all these hospitals? I leave it there. Perhaps the noble and learned Lord the Lord Chancellor can give us some explanation of this curious business. And I hope he will tell us what steps are being taken to get information and views from those who really are likely to have something to contribute.
The only other heading to which I wish to refer is the last one, "The interepretation of statutes". It is far more important to secure that the statutes are clearly drafted so that their meaning is plain. If they are, the need to rely on rules for interpretation will diminish, if not disappear. I must confess that I am very disappointed by some of the statutes passed in this Parliament. The meaning of their provisions is often less than clear. After all the Lord Chancellor has said to us about the need for the law to be clear, I am disappointed to find in an Act like the Rent Act 1965 a subsection such as the one which I am going 435 to read to your Lordships (it is quite short) and for which the Government of which the Lord Chancellor is a member, and not the Law Commission, are responsible.
The subsection I want to read occupies only about six lines. It is subsection (6) of Section 1 of the Rent Act 1965, and it says:In their application to regulated tenancies the Rent Acts shall have effect subject to the Amendments specified in Schedule 1 to this Act and to the other provisions of this Act (and without regard to any provision excluding their application by reason of the matters mentioned in paragraphs (a) to (c) of subsection (2) of this section).I am not seeking to jest about this. But if your Lordships consider the labour involved by any practitioners in ascertaining exactly what that provision does, your Lordships will, I am sure, agree with me that they, too, would have a formidable task. It cannot be said that this is making the law simpler, more accessible, more easily understood and more certain. The Rent Act is an Act which was brought into force very soon after it was passed. It is an Act of great importance to a great many people. Yet, if it is to be understood, they have to understand the effect of subsections like the one I have quoted.
My Lords. I sometimes think that often clarity is sacrificed to brevity; that very often the meaning to be given to a subsection like the one I have read would be far easier to discern if the subsection itself were expanded and made longer. It is sometimes thought that, if that course is taken, it opens up the field for Amendments moved in Parliament. I am not by any means convinced that this is true. But I do feel that it is really much more important for the Government, for the Lord Chancellor, and for the Law Officers to do all that lies in their power to make the Statutes themselves easily intelligible. It is an impossible task, I know, with the Finance Bill, but with regard to other Bills it certainly should not be impossible. Then the final task that the Law Commission have set themselves, the interpretation of Statutes, becomes of lesser importance.
I have spoken long enough. The Commission have indeed undertaken a task of great importance and great magnitude. It is one which I think will take years to 436 accomplish. I think it will be years before we see their second programme, and I hope that when he comes to reply the noble and learned Lord the Lord Chancellor will be able to deal with the matters to which I have referred, and answer the questions I have put. One wishes the Commission well in the performance of their self-allotted tasks, and await with interest to hear the Lord Chancellor's observations which may explain to your Lordships, to me, and to the public, more fully than is done in this Programme, the way in which the Commission intend to operate. I beg to move for Papers.
§ 5.21 p.m.
§ LORD REID
My Lords, I think this programme is broadly a good one, and if I have some criticisms to make, as I have, I hope it will not be taken as indicating that I am in any way unsympathetic to the work which the Commission are doing. If I had a general criticism, it would be that the Commission have been rather too ambitious. With seventeen large subjects of this kind, it will obviously take a very long time to accomplish any real result. I wonder whether my noble and learned friend the Lord Chancellor will be able to say whether any estimate has been made about how long the fulfilment of the programme will take. As time goes on, a number of points emerge which are of limited but immediate importance, and it would be a great pity if the Commission felt themselves in any way tied by the terms of this Programme so that they were not able, at short notice, it may be, to take up some entirely different point, if either they or the Lord Chancellor thought that that would be a good thing to do.
I do not want to occupy the time of the House with generalities, and may I pass to the points which I have in mind and which, I am afraid, are not too few? I hope not to take up too much time over them. First, I welcome the note which precedes the Programme, because I think that on the whole it indicates their objects in a good way. For example, their first objective is to avoid duplication of effort and they are, of course, perfectly right in not terminating inquiries which are already in being. But I hope that in future, when you have an extensive and difficult subject like the law 437 of evidence, this will not be sent to anad hoccommittee.
The main reason that I and, I think, others, advocated two years ago in this House the alteration of the then system of legal reform, was that I was satisfied that you cannot expect good results froman ad hoccommittee which has no adequate staff, which meets only occasion-in the evenings, and members of which cannot attend every meeting. It really will not do at this time of day to remit complicated issues to bodies of that kind. It may be all right if you have a very limited issue, in which practical experience is the thing that really matters. Then a committee of that sort may be valuable. I should think that the committee must consult all interests, particularly legal interests, involved; otherwise they cannot find out how the shoe pinches either the ordinary lawyer or the ordinary man.
I should like to know from my noble and learned friend how the Commission are progressing with the appointment of staff—I do not mean typists and people of that sort; I mean highly qualified staff, whom they ought to have in sufficient numbers to help them in preparing the ground for all these topics. I should think that there is room there for several young and keen first-class men, and I hope that the Commission will be able to establish the tradition that being appointed as an assistant to this Commission is a very high legal distinction and will be noted by the profession generally, so that you will get the pick of the young men who are coming down from college. I have no knowledge of the American system, but I gather that something like that is done in the United States, with admirable results.
There is one other question at this stage which I might ask my noble and learned friend. In cases where topics are remitted to committees, and where committees report, is it quite clear that the Commission will then apply their own minds to the whole question and will either accept, reject, or modify, as they see fit, each of the recommendations of the committee? No doubt the committees' reports in most cases will be published, but I hope that the Commission will be charged with the duty of going over these reports and making their own recommendations.
438 Then there will be questions, for example, like experience abroad on the topics which the committees have been examining, and which they have no method of examining themselves unless members of the Commission staff are deputed to help them in that regard. I should like to know how it is proposed to work the system when an independent committee reports.
I pass next to the desirable objects set out in the first sentence of paragraph 3 of the note:It is desirable that the law should be simpler, more readily accessible, more readily understandable and more certain than it is to-day.One sometimes sees, at least in old theatrical bills, the most important person is "and somebody" at the end. I very much hope that "and more certain" means that "more certain" is the most important of all the criteria on which the Commission are going to work: in other words, that the Commission will not attempt either simplicity, accessibility or intelligibility, if they feel that thereby they are losing any degree of certainty in the present law.
Then I note a very interesting suggestion and I hope it will have practical results in the near future. It is the last part of paragraph 3: that the Commission areto investigate other means of simplifying our statute law, paying particular regard to the forms in which it is cast.That seems to me to mean that the Commission are going to try to devise a better and simpler system of drafting than that which is at present employed by Parliamentary draftsmen. I am not prepared to say whether that will be successful or not— probably the Commission themselves do not know yet. But, taking the example that my noble and learned friend Lord Dilhorne gave a moment ago, one would hope that it would be possible for this Commission to devise some system which will avoid monstrosities of that kind.
In our judicial work we are constantly having wholly unnecessary complexity in sections of Acts of Parliament which I think is largely the result of the causes to which my noble and learned friend alluded—a desire to compress into the smallest possible bulk a number of things which could have been explained quite 439 easily if a whole page had been taken instead of a subsection. I hope that the Commission will try to devise some more expanded system which will be more intelligible than the present system of drafting.
I will not say any more about the rules of interpretation, because I rather doubt whether the Commission will be successful in finding new rules which do not impair present certainty. Under present practice we go by the words. People think we are very pedantic, hut, on the whole, it leads to certainty, and if you are going by some vague intention or some other criterion, it may he more logical, it may lead to a higher degree of justice in individual cases, but I look forward with interest to see whether it can be done without impairing the present degree of certainty.
I now come to the paragraph which, to me, is most welcome of all, if it means what I think it means. It is paragraph 5. I take that paragraph to mean, in very guarded language, that the Commission intend to feel their way towards a system of administrative law in this country, a thing which we sadly lack at the moment, I believe for this reason. Sixty or seventy years ago legal pundits were inclined to think that administrative law was a method of protecting the bureaucrat against the public. We now know, however, that the true purpose of administrative law is to protect the public against the bureaucrat, and with that in view the present system is quite hopelessly archaic. I hope that progress will be made. I note that they say that this is a very complicated problem, and I quite agree, but I would make this suggestion. The whole system could not possibly be overhauled except after a prolonged inquiry, followed by a prolonged consultation with all manner of Government Departments and the rest, but there are quite a number of separable points which could be tackled immediately.
Let me give just one. In the old days —and in the not so old days—the prerogative writs were an extremely useful method of keeping all manner of people under control; but they have become hopelessly rusty, partly no doubt owing to the fault of our predecessors in the judicial world. I would make this concrete suggestion. For example, the most 440 important of the prerogative writs to-day is the writ of certiorari, but no one on earth can understand all the technicalities of it; and if you could understand them you would find them quite ridiculous. Therefore I suggest, as an early task for the Commission, singling out that topic of the prerogative writs to see whether we cannot redesign them in a manner suitable for modern needs.
I come now to the 17 subjects which are detailed. I do not intend to say very much about them, partly because my noble and learned friend has already dealt with them in some detail; but, like him, I hope they are not set out either in order of priority or in order of importance, because I do not think they occur in either of those orders. I think they are all well worth inquiry, but some are much more urgent than others. There are, however, one or two points of a general character arising out of these 17 topics on which I should like to say a word or two. The first is with regard to heading II. I say nothing about the heading itself, but I do wish to say a few words about the proposal that the subjects in paragraphs (a) and (b) should be examined by an Interdepartmental Committee. I want to know why that recommendation has been made. It seems to me to be wholly inappropriate, and for two reasons. In the first place, the views of traders and consumers are very much more important than the views of Government Departments; in the second place, it seems to me that this must be duplication of effort, because, whatever the Inter-departmental Committee recommends, the Commission will have to apply their own minds to the matter. I do not understand why they cannot themselves ascertain from the Departments any views which the Departments have on these topics, and then obtain from the various persons and bodies interested memoranda, or it may be oral evidence, explaining their point of view. As at present advised, and subject to what my noble and learned friend says, I should have thought this proposal was a bad one.
I should also like to deal with heading XIV, which deals with criminal law. I cannot see why the functions of the Commission should not be exactly the same with regard to criminal law as they are with regard to civil law. I observe that 441 the recommendation is that an examination be made and that the Home Office be asked to refer the examination to the Criminal Law Revision Committee. Surely it is high time the Home Office was out of this altogether. The Home Office has no more to do with the substance of criminal law than the Board of Trade has to do with commercial law. For historical reasons the Home Office were the only people there, and it was quite right that they should deal with it, and to-day, of course, it is quite right that the Home Office should deal with what happens after a man has been convicted, because that is a matter of social policy and a matter of administration. But what the Home Office has to do with the procedure before the courts I fail to understand.
It seems to me that criminal law is as much in need of general overhaul as the civil law, as we have learned to our cost since criminal appeals became more frequent in this House, and if it is proper for the Commission to undertake the overhaul of civil law I do not see why it should not undertake the overhaul of criminal law. It is perfectly true that this will give them a great deal to do, but we cannot expect that the programme of the Commission can possibly he completed in less than five years, and I think we shall be very lucky if it is completed in that time. I should have thought that the reform of the criminal law is a great deal more urgent than half a dozen of the topics which are mentioned in this programme.
The only other heading I would mention is heading VI, because I think this is the only heading under which it is proposed that there should be any examination of procedure. I think it is unfortunate that this programme should he overloaded with, not always the reform, sometimes only the codification or redrafting, of the law, and that the really important matter, the reform of procedures, should be comparatively neglected. There is no difficulty at all about the Commission's getting advice if they are not all practising lawyers, but it seems to me that the present situation is such that unless something is done about it very quickly we shall be in as much of a jam as the traffic in Oxford Street. We are always appointing more judges, and then there is more congestion, and then there are more judges, 442 and then there is more congestion. As things are, it is unending.
I am not going to make practical suggestions, because they would not come well from me, most of my experience having been in another jurisdiction, but I would suggest at least that urgent inquiry should be given to the question whether more cases presently taken in the High Court, civil or criminal, should not be taken before lower courts. That seems to me to be extremely urgent. I think I am right in saying that in Scotland a good deal goes to the lower court which here goes to the higher court, and I have never noticed anything wrong as a result.
§ LORD REID
Certainly not, except undefended; there may be something for that. But it is perfectly clear to my mind that a defended divorce is one of the most important things that can come before the courts, and I would almost die in the last ditch before I would see a defended divorce case sent to any other than a High Court judge.
§ LORD SILKIN
. I should be prepared to die with the noble and learned Lord in the opposite direction.
§ LORD REID
We perhaps cancel each other out in the long run, but we shall see; I hope to survive.
There was one other topic. I should like to mention Head X, family law. It may be that this does not mean what it says, but if it does it means that the Commission are going to waste their time, because it is a complete waste of time for the Commission to apply their minds to questions of policy. The public who are interested in these matters will attach no more importance to the views of the Commission on questions of general matrimonial policy than they will to the views of any other five men reasonably qualified to give an opinion. Indeed, it is worse than a waste of time, because if this Commission are to succeed they will have to establish the reputation for having a practical approach to matters, for producing reports to which there is very little opposition, and then you will be able to get the Bills through within a minimum of Parliamentary time. But if 443 this Commission start dealing with matters of a highly controversial nature people will be very slow even to allow other and less controversial matters to go through, so to speak, on the nod. I very much hope that the Commission will be discouraged from undertaking anything of a highly controversial character.
I think the Scottish approach is the right one. May I say, in passing, although it is not relevant to this debate, that I think the Scottish Programme is an extremely businesslike one and that the Scottish Commissioners are to be congratulated on the way in which they are tackling their job? But on this matter may I read paragraph 4 of their Memorandum:We are conscious that examination of these branches of law may involve questions of social policy appropriate for consideration by more widely representative bodies, but we take the view that our preliminary work will enable us at least to supply valuable information derived from other systems of law.That appears to me to be the right approach, whereas, unless I misread Head X, I think there are signs there of the wrong approach. But, subject to those criticisms—and I hope I have not put them too strongly—I do look forward to a series of most valuable reports from this Commission on the topics which are included in the Programme; and I would hope that, if they select the right topics for their early reports, it will be possible to get the resulting Bills through Parliament with the minimum time wasted and minimum of opposition.
§ 5.45 p.m.
§ LORD GOODMAN
My Lords, I have to ask your Lordships' indulgence in seeking for the first time to exercise the high privilege of addressing this House. I shall not infringe in point of time, so far as the convention of a maiden speech is concerned, but I am not entirely easy in mind that I shall not infringe in regard to the convention of controversy, since it seems to me difficult to contribute anything to any discussion without arousing some degree of controversy. Fortunately, this is a legal discussion, so that it will be legal controversy of a special order from which no bloodshed ensues. When I came here this afternoon, I did so, in one sense, out of a feeling of duty. I felt a duty, as a practising solicitor in 444 active practice, and a recently created Member of your Lordships' House, to express wholehearted and unqualified welcome to the Law Commissioners and to the Programme which now exists as a fact to evidence their existence.
I do not believe there can be any controversy among lawyers whose noses are not too close to their papers that law reform is long overdue. I believe that the establishment of the Law Commission is an imaginative and important piece of initiative which is the most encouraging thing that has happened in the law in the thirty-odd years I have been practising in it. It would be wrong if any practising lawyer did not take the opportunity to congratulate the noble and learned Lord the Lord Chancellor upon this particular initiative which brought pleasure, I think, in many legal quarters.
This does not, of course, mean that one must bring a totally uncritical viewpoint to the First Programme, but I think, if I may say so, that it may be possible to underrate the acumen and intelligence of the extremely distinguished gentlemen who constitute the Commission in saying that they are not conscious (I may say that I have had no communication with them at all, so I do not know what they are conscious of or not conscious of) of the enormous scope of the Programme which they adumbrate in this Report. I think we should be underestimating them if we believed that. I am sure they are conscious of it, and it is my belief that they have done this quite deliberately in order to demonstrate the enormous range and extent of the Programme to be dealt with. It may well be the case that this Programme will take a very long time to carry out, but it has taken a very long time for us to get to the point where it is dealt with at all, and I do not think it is in the least a deterrent that the Commissioners may be occupied for three, four, five or ten years in dealing with the massive problems they have set themselves. I think it would have been quite wrong if they had merely instanced one particular topic in a Programme and left it at that. It could have left a complete misunderstanding as to what the problem was.
I personally feel some disappointment at the Commission's choice of topics. I think there are fundamental matters that require consideration before the detailed 445 legalistic matters—and matters are not less important for being legalistic—to which they have drawn attention. One matter to which the noble and learned Lord, Lord Reid, has drawn attention is the jurisdiction of the courts. I should have liked to see the Commission dealing with the question of the relative jurisdiction of the higher and inferior courts, a subject which I believe to he a matter of very great importance. In my view, much of the congestion in our legal system is due to a failure to deal with this.
A second matter that I regard as of the highest importance is the reorganisation of the legal profession; and I have made no secret of the fact that I am a determined fusionist. I believe that for a modern society the organisation of the legal profession at the moment is, frankly, an absurdity. It is one of the things that make it desperately necessary that we have a Commission of this kind, examining why a legal system such as ours, which enshrines some of the finest features and some of the glories of our civilisation, may nevertheless make it totally impossible for a person of modest means to protect his rights in the courts. I think this is a matter to which every lawyer, and many people who are not lawyers, should address their attention as an extremely urgent problem. Many of us will have read the other day of a case which was concluded in the courts of England addressed to the question—not a simple question, probably a complex one —of determining the rights of persons under a will and which involved costs to the extent of half a million pounds. In making this comment I should like to make it clear that it involves no criticism whatsoever of the lawyers engaged in this case, many of whom are known to me as persons of admirable competence who would not have overspent a penny. What is certain is that there is something drastically wrong with the system; and one needs only this particular case to show that the system calls for immediate and urgent investigation.
I would venture one other word on the question of the scope of this particular Report, because I believe that there has been some criticism of the personnel of the Commission. I do not think one need disguise this fact, but my view is that the criticism is completely misconceived.
446 I think that the noble and learned Lord the Lord Chancellor has done an excellent job in his selection of Commissioners. He has had a very difficult job. I believe that lawyers—practising lawyers, and particularly successful practising lawyers —bring an empirical and a dogmatic approach which are the keynotes of successful practice; but they are not the keynotes of people able to address themselves to questions of reform. It was by no means an easy job to find suitable people who would be able to undertake this task, and I feel that the Lord Chancellor has carried out a difficult task with enormous skill.
The one comment I have to make is that this Report seems to be loaded, if I may use that word, on the Common Law side. There appears to me to be a notable absence of a Chancery mind. This, of course, is not a criticism of the qualities of the persons concerned in the matter; but it seems to me that throughout the Report less consideration is given to matters which I should regard as at least as urgently in need of reform on the Chancery side as on the Common Law side. This may well be due to the fact that the persons who form the Commission are, in the main, people who have their experience as Common Law lawyers and not as Chancery lawyers.
I should like to touch on the question of waste, in regard to which an amusing allusion was made by the noble and learned Viscount. I think he has done the Commission a great service by initiating this debate, and by drawing to their attention the fact that, while they may he learned lawyers, they may not be competent administrators. I do not think that simply on account of any circular —which I am sure was not sent out by the Commission themselves: if it was sent out it was sent out by some minion—they have forfeited anyone's confidence. It would be an extremely harsh judgment to say that because they sent out a circular in different directions, they had forfeited the confidence of the country and the people they were designed to serve. They would have forfeited our confidence more because of their apparent belief that it is possible to elicit any useful information from a circular or a questionnaire. This is a much more culpable notion than sending out a circular to the wrong quarters. But certainly I 447 think that it would be quite wrong not to afford to the Commission the fullest opportunity of showing what they can do. I think they deserve, at least until they really forfeit it, all the confidence and good will of every lawyer and of the public at large. When the Commission forfeit that goodwill, then will be the time to make some changes.
The final observation that I venture to make is this. It appears to me that this debate has to some extent postulated an emphasis that is not my understanding of the Act. The Commission do not exist to reform the law: they do not even exist to produce reports upon which the law is to he reformed. As I understand it, the Commission exist to provide a microscopic examination of those sections of the law which lawyers regard as defective. It would be absolutely wrong if we were to entrust reform of the law to five Commissioners, however brilliant or distinguished they may be. I am sure that this was never anyone's intention, least of all that of the noble and learned Lord on the Woolsack.
What the Commission have to do is to examine every aspect of the law which they consider worthy of examination, and then to report. I think it behoves this House and another place to consider these reports with precisely the same care as if they had come from any other quarter, and to take into account that they are the reports of experts and that a great deal of work may be saved. There appeared to me to be a misconception in one remark made by the previous speaker, who spoke of the necessity of the Commission to review the report made by any other agency to which they had referred a matter. This, I think, is quite wrong, because it is not any function of the Commission either to consider a matter on their own account or to find a suitable agency to report on it; and I think it would be doing the Commission a disservice to suggest that the seal of their own approval must be set on all such reports. Obviously, the Commissioners cannot be experts on everything, and it would be quite wrong to suggest that they ought to try to be.
May I, in conclusion, thank your Lordships for the indulgence you have extended to me? I hope that I have not taxed your Lordships, and I wish 448 this particular Commission great success in their important functions.
§ 5.54 p.m.
§ LORD SILKIN
My Lords, it is my great pleasure and privilege to congratulate the noble Lord on his maiden speech. He asked for the indulgence of the House. I can assure him he does not need any indulgence. It was to us a great pleasure to hear him. When some of us first heard that he was about to join us, we had high hopes of his presence here and of the contribution he would be able to make to our deliberations. We knew that he was able to talk with great authority on the law and on the arts, and on a great variety of other subjects. He has given us a taste of his views on the law we now look forward to his views on all these other subjects of which he is equally a master. He said that he realised that it was not the function of a maiden speaker to be controversial, although he was a little doubtful whether he could be entirely non-controversial. I think he tried hard not to be too controversial. I look forward to his next speech when he is really controversial.
I should like to join with him in thanking the noble and learned Viscount, Lord Dilhorne, for having raised this subject. I say this in no conventional sense. This is a most important subject and, although there are few noble Lords here, it is something which will in due course affect the lives of almost every citizen of this country. I think it is right that we should discuss the Report of the Commission at its early stages. I myself feel strongly that their main task is the simplification of the law. If the general public are to support law and order in this country, at least they ought to understand the law. It ought to be readily accessible to every citizen and, although it is perhaps asking too much, it ought at least to be readily understood and accessible to most lawyers.
I see that the Commission appreciate that, because in paragraph 3 of their Note of Introduction they say:It is desirable that the law should he simpler, more readily accessible, more easily understandable and more certain than it is today.They say that consolidation and codification are important means of simplification, and they go on to say that that is not all that is needed. If these are not to be 449 mere pious words—and our experience up to now does not encourage us to believe that legislation which is coming forward at the present time will comply with the terms of paragraph 3—should like to see the Commission starting at once to take in hand one or two measures and to simplify them.
Let us take, for instance, the Rent Act. The Rent Act was described by its author in another place quite recently, during the passage of the Bill, as the most difficult and complicated measure of which he had ever had experience. I believe it is. The noble and learned Viscount read out one paragraph of this Act. I have the Act here, and I was prepared to read out a good many more; but I will spare your Lordships that. It is a most difficult Act, and how the ordinary man in the street who is a tenant and wants to know what his rights are, can gather what they are by reading this, or even, with respect to this document, by reading the questionnaire and getting a satisfactory answer, I do not know. I would suggest quite seriously that the Commission might begin by tackling either this Act or any other they think is of widespread interest, in order to see what they can make of the task of rendering it simple and easily understood.
I agree with the noble and learned Lord, Lord Reid, that it will probably be a very big measure; it is likely that it will he much longer than any Act of Parliament in existence to-day. That may be so, but if a practitioner wants to know what the law is, with all its elaborations and all the decided cases, he has to buy an enormous volume. He will not get it from the Act of Parliament alone. Recently I was anxious to get some detailed information about the law of compensation. I had to invest inCripps on Compensation, which cost me 10 guineas: it is a very large volume of almost 1,000 pages. No Act of Parliament would be as big as that, but at least if one could get something which would be substantially bigger than any existing Act and which would make the law clear, it would certainly be a great advantage. It might not be a bad thing for the Commission to start off by seeing what they can make of one particular measure, or several measures.
450 Paragraph 8 of the Note by the Commissioners interests me very much. It says:It is equally important that the law should promptly respond to informed criticism of certain developments of principle…".I have in mind one development of principle with which I was concerned in this House ten days ago. This was a matter which had been the subject of examination by an Interdepartmental Committee thirty years ago. At that time the Interdepartmental Committee recognised that the law was in need of alteration and amendment, which was recognised almost universally in this House ten days ago. But it was left to private enterprise to embark on the task, a task which the Commission think is very important. I hope very much that they will initiate an inquiry into methods of bringing about this kind of thing where public opinion has changed on matters of principle, and, if not actually to promote legislation—which I agree with the noble Lord is not their function—at any rate to draw attention to it and ensure that the matter is seriously brought before those who are responsible for introducing legislation.
Everybody who has spoken so far has been complimentary to the work of the Commission. I know that we should all like to congratulate the noble and learned Lord on the Woolsack for the part he has played in the passing of the Act to set up the Law Commission.
My noble friend made some observations about the constitution of the Commission. I do not think that I want to make any comments, but I have two doubts about their work. I would not suggest for one moment that any one of the seventeen items set out in their programme is an item which should not be investigated in due course. Like the noble and learned Viscount, Lord Dilhorne, I should like to know whether the order in which they are placed represents the Commission's view of the importance of these matters, or whether it is just fortuitous. Nor do I think that they have necessarily chosen the most important of the matters requiring investigation. The question of priority needs further consideration. With great respect, it may well be that the reason is that members of the Commission are eminent lawyers—I say this in no pejorative sense—and may be inclined to look 451 at matters from a rather legalistic point of view. This is somewhat illustrated by their proposed investigations into the question of waste. Important as it may be, it is not a subject I would regard as being in the "top seventeen". With respect to the noble and learned Viscount, I have always thought that the Commission should have contained amongst its members somebody who would have been (if I may put it this way) more in touch with the world, such as a solicitor.
§ VISCOUNT DILHORNE
My Lords, I think the noble Lord is referring to me. With respect, he will perhaps remember that I urged that very strongly, and I was glad to see that, although there is no solicitor as a Law Commissioner, a solicitor is assisting them as a consultant.
§ LORD SILKIN
Well, that is something; it is a step in the right direction. After all, solicitors are much more in touch with the ordinary may in the street and know where the shoe pinches than barristers with very large practices, who have no time to find out what is going on in the world. These are what one might perhaps call growing pains, and I am quite happy to leave things as they are and to let the difficulties emerge. Knowing the noble and learned Lord on the Woolsack as I do, I am quite sure that if he discovers that any amendments or variations are needed he will not hesitate to carry them through.
Generally, I wish the Commission well in their work. They have a big task, it may take a long time, but I agree it is just as well to get the picture "in the large" as to what they have before them, whether we accept it in its entirety or not, so that we may see whether it really is a big task as against a limited one. I am sure that they will carry out their job well, and I hope that we may have another debate on this matter within the reasonably near future.
§ 6.8 p.m.
§ LORD DENNING
My Lords, I, too, should like to welcome this Programme of the Law Commission. I think that it shows and justifies the vision of the noble and learned Lord the Lord Chancellor in appointing a Commission. This very programme, as my noble friend Lord Goodman said, points to the defects which need remedying in our law. If 452 I may say so in congratulating him, I should like to associate myself with nearly all he has said, excluding perhaps the question of fusion of the professions as a matter for the Law Reform Commission. I join, too, in stressing the need for true selection of priorities. I am very glad to see that the Commission stress the urgent remedying of decisions which are shown and felt to be wrong.
There are two instances which are mentioned in the Programme, but I am not sure that the right agency has been selected. Let me take the case of the criminal law:The Director of Public Prosecutions v. Smith. That was a case, as some of your Lordships may remember, where a man was called upon by a policeman to stop his car. He did in fact stop it, but when the policeman sought to examine him he started off the car, with the policeman on the bonnet, and then zig-zagged down the road and bumped the policeman first against one car and then against another until the policeman was thrown off and killed. In this House the test was laid down that if he must, as a reasonable man, have known that his act was likely to cause death or grievous bodily harm, it was murder. That test has been criticised by academic lawyers, and has even been criticised by the High Court of Australia. The question is: In what way should the Judges sum up? In a murder case that is a serious question, although an every-day question, which certainly needs immediate examination.
I venture to think that the decision has been misunderstood in some quarters, but the House did not depart from the criterion that one looks at the intent and as a test examines only the case of a reasonable man. But howsoever that may be, I venture to doubt whether a matter of that kind should be relegated to the Commission only. Surely, it is a matter which should have the consideration of the practising Judges in criminal matters of to-day, who have to consider these matters, and that of the practitioners. If it is right that criminal law misdemeanours and conspiracy should go to the Criminal Law Revision Committee, then it might be said that this question ofThe Director of Public Prosecutions v. Smithshould go, too. That is, of course, only a matter of detail.
453 There is 'another more recent decision. Your Lordships may know that when a wife has been deserted by her husband, if he owns the home and has left it, he cannot get her turned out by the courts. But as a result of a recent decision by this House, if he should sell to anyone, whether it is to his mistress or a relative or a bank, even if they know all about the position, the purchaser can turn her out. That, again, is a matter which the Commission quite rightly say needs urgent examination it is quite rightly a matter which they will inquire into and, I hope, report on shortly. All such matters as those are well within the province of the Commission, and I hope that they will report on them speedily. But the Commission have an ambitious Programme which they are quite right to deal with, and indeed to take some time about, and I can foresee that this Programme cannot be fulfilled within three, five or even more years. However, it is still right to draw these matters to the Commission's attention.
We must remember, for instance, the law of contract and the law of exempting clauses concerning people who have been asked, as they are, to sign on the dotted line. If you have signed on the dotted line without looking at the document, you may find that you are excluded by all sorts of exempting clauses. That grew up in the nineteenth century with the doctrine oflaissez-faire,when it was said that there was freedom of contract: that sanctity of contract was more important than anything else. But what is the sanctity of a document when you never read it but simply sign on the dotted line? Those are the sort of matters which the Commission recommend should be investigated and which are all well worthy of consideration, so as to bring the position up to date.
But I do wonder about the great task which the Commission have set before themselves of codifying the law of contract, and codifying the law of landlord and tenant, because the law in those matters is not, as I see it, uncertain. There are very good textbooks available nowadays which set out the law with perhaps as much certainty as can be had from a Statute, and having a Statute codified means that it is not flexible thereafter for the Judges to mould according to the needs of the time. When 454 I read the last recommendation, on the Interpretation of Statutes, after reading through the whole of this Report, I see that the emphasis is on amending and clarifying our Common Law. That is all very desirable, but there is hardly a word about Statute Law.
May I join forces here with my noble friend Lord Silkin? The cases which we have before the courts more than anything else nowadays are cases involving Statute Law and the interpretation of Statutes. Any of us who have been concerned with cases of revenue under the Income Tax Acts, or with cases of death duties under the Estate Duty Acts, or with stamp duties, knows that the verbiage is such that the courts and lawyers spend many hours of their time interpreting it. The process is simply that professional men, be they solicitors or accountants, spend their great talents in finding out ways in which, by various devices, people can escape from duties or tax. Then, on the other hand, the revenue authorities spend their time in trying to plug the holes by reforming legislation. The result is that the Acts are such that no one outside a very few specialists can understand what they mean. Indeed, it is almost an impossible task even for us in the law. It would be a great task to make those Statutes simple and certain. I should have felt it much more worth while to make those Statutes, or some of them, certain, than to spend years codifying our law of contract, or indeed codifying our law of landlord and tenant. This is only one instance where I have a question mark.
In conclusion, I should like to say that the personal injury cases again, of which we have so many in the courts, present a pressing problem to which I hope the Commission will direct their attention very speedily. We have said—and it has been criticised—that most of these cases should be tried by Judges alone and not by juries. But nowadays —for instance, in the case where a person is injured and may be rendered paralysed from the waist down, or even from the neck down, and will live for two or three years—the problem arises: Are the damages to be £20,000 or £30,000, and are they all to go to the relatives? As I understand it, the present law says that you can only give a lump sum in these cases. Might it not be well worth 455 considering whether a monthly, yearly or other periodic payment should be given, rather than a large capital sum, when what is going to happen in the future cannot be foreseen?
The Commission raised this matter—it is one of the most important questions of the day—but they have divided it between two authorities: the first, an ad hoc committee considering the methods of trial; and, the second the Commission themselves examining the methods and basis of assessment. It seems to me that one agency, whichever be the right one, should consider the matter, because whichever body does it it is bound to consider the subject as one whole. It involves so many questions of policy as well as of law that thead hoccommittee which is suggested might be the right one. However, my Lords, the points I have mentioned are only details. I come back to what I said at the beginning: this is an imaginative Programme. It shows the path to reform, and where reform is needed in many spheres of the law; and I hope that everyone will welcome it and wish it well in its progress.
§ 6.20 p.m.
§ LORD AIREDALE
My Lords, on an occasion like this I feel apprehensive lest I be ground beneath those great millstones of learning— the noble and learned Lords who adorn both ends of the Chamber. But I will venture to make, as quickly as I can, just one general point and two particular points, and then sit down.
First, the general matter. The noble Lord, Lord Silkin, reminded us that the subject matter of this debate will affect the lives of every citizen in this country. I venture to suggest that one can go further than that. I was most impressed, if I may say so, with some words used by the noble and learned Lord the Lord Chancellor during our debate on Rhodesia the day before yesterday, when the noble and learned Lord said:… it is still the fact that two-thirds of the whole of the population of the world is governed by the law that came from England,…"—[OFFICIAL REPORT, Vol. 271 (No. 15) col. 116; 7/12/65.]From that, I think it follows that, whether or not this subject matter is of magnetic interest to noble Lords generally, at least it can be said that, when the Mother of 456 Parliaments sets about reforming the mother of legal systems, this is a matter which is of great interest far beyond the shores of this small country.
Coming now to the two particular points, I join with the noble and learned Lord, Lord Denning, in welcoming particularly the decision to have examined the desirability of allowing powerful organisations to contract out of their liability for negligence; and I hope that the noble Lord, Lord Silkin, may be right when he suggests that perhaps the topics in this Programme are arranged in their order of importance, because this particular one comes under paragraph 2. If there he anybody who doubts at all seriously whether this exercise is desirable. I venture to suggest that such doubts will at once be resolved if he will give just a quick glance at a case which was decided in 1964 by this House, sitting judicially. Indeed, the noble and learned Lord, Lord Reid, was one of those who delivered judgment in the case.
The case wasM'Cittcheon v. David MacBrayne Ltd.,and it is reported in the1964 Scottish Cases, Part 1, at page 28. The noble and learned Lord, Lord Devlin, summarised the facts of the case at the beginning of his judgment in these words:When a person in the Isle of Islay wishes to send goods to the mainland, he goes into the office of MacBrayne (the respondents) in Port Askaig which is conveniently combined with the local post office. There he is presented with a document headed ' Conditions ' containing three or four thousand words of small print divided into twenty-seven paragraphs. Beneath them there is a space for the sender's signature, which he puts below his statement, in quite legible print, that he thereby agrees to ship on the conditions stated above.The appellant thought it wouldtake half a day to read and understand the conditions, and then he would miss the boatIt does not appear how long it took the noble and learned Lord, Lord Devlin, to read all the conditions, but in the course of that exercise the learned Judge discovered one which protected the carrier againstany loss…wheresoever or whensoever occurring ",and another which the learned Judge said was, by itself, 457enough to absolve the respondents several times over for all their negligence.He was referring there to the negligent navigation of the company's ship whereby it struck a rock and sank, sinking with it, of course, the appellant's goods.
The learned Judge went on:It is conceded that, if the form had been signed as usual, the appellant would have had no case. But, by a stroke of ill-luck for the respondents, it was upon this day of all days that they omitted to get Mr. M 'Sporran "—for that was his name—to sign the conditions. What difference does that make?If it were possible for your Lordships to escape from the world of make-believe which the law has created into the real world in which transactions of this sort are actually done, the answer would be short and simple. It should make no difference whatever. This sort of document is not meant to be read, still less to he understood. Its signature is in truth about as significant as a handshake that marks the formal conclusion of a bargain.Then, almost at the end of his judgment, the learned Judge said this:What is sauce for the goose is sauce for the gander. It will remain unpalatable sauce for both animals until the Legislature, if the Courts cannot do it, intervenes to secure that when contracts are made in circumstances in which there is no scope for free negotiation of the terms, they are made upon terms that are clear, fair and reasonable and settled independently as such. That is what Parliament has done in the case of carriage of goods by rail and on the high seas.So much, my Lords, for that matter.
The only other matter that I wish to touch upon, because it is of topical interest, is this. It was only last Monday that the learned Judge, Mr. Justice Paull, in the High Court, delivered his reserved judgment in the Dagenham Greyhound Stadium betting case. That was a case which was curious in one respect, in that, because of the odd state of our present betting laws, it had to be brought in a roundabout way. This added to the costs —which certainly our maiden speaker in this debate would not have approved of —and it perforce introduced into the proceedings a certain amount of artificiality which was to be regretted. It led the learned Judge to say this—and for this I am indebted to the law report in last Tuesday'sGuardian. The learned Judge said:Speaking personally, it seems to me a great pity—now that the State licences the Tote and betting shops and receives money 458 from such licences, and also receives its share from the bets placed with the Tote and the betting shops—that an issue such as this cannot be decided by a straightforward claim by "— the punter—against the bookmakers.I find it difficult to understand why the State should declare a transaction null and void, and then take a share of the transaction.My Lords, our present betting laws governing this matter are now 120 years old. They are comprised in the Gaming Act 1845. Whether this is a matter which should go before the Law Commission is not for me to say, but I very much hope that this is a topic upon which we may have some law reform.
§ 6.29 p.m.
§ LORD LLOYD OF HAMPSTEAD
My Lords, I think we have had an exceedingly interesting debate this afternoon, which perhaps has been none the worse for being relatively brief. I, too, should like to say, as has been already said by some noble Lords, that the noble and learned Viscount, Lord. Dilhorne, has conferred a great service upon the Commission by initiating this debate; because, after all, the Commission is engaged on an immensely important task, and it is vital that its activities should remain in the public eye.
I am glad that the noble and learned Viscount did not, broadly speaking, attack the actual content of the programme, because it seems to me that, generally speaking, it is an extremely well-balanced programme. But I share the view of the noble and learned Viscount that the question of priorities is important, and one certainly feels justified in inquiring exactly how these priorities are contemplated in this programme. I should be surprised to hear that the priorities are simply in numerical order, as contained in the programme. It is said that the programme is too ambitious; but I should have thought, with respect, that if this is a fault, it is a fault on the right side.
Then the point was made by the noble and learned Viscount, entirely rightly, I venture to think, that it is very important that the Commission should conduct all necessary consultations in the course of their investigations. My Lords, it is not for me to anticipate the reply that was sought by the noble and learned Viscount from the noble and learned 459 Lord who sits on the Woolsack; but I, for one, should be surprised if we were not told in due course that this Commission, which is fully aware of the nature of its task and its duties, is proposing to conduct every necessary form of consultation, whether in the professional world, the business world, in the matter of research to be initiated, with economists or with sociologists, whichever are relevant to the proposed legislation. I should be surprised if the Commission did not contemplate taking such necessary steps in the course of its investigations.
Indeed, the very matter about which, if he will forgive me for saying so, the noble and learned Viscount made a certain play—namely, the questionnaire which he read out to us—was, after all, a piece of the machinery that was being employed in order to carry out such investigations. It may well he that this document was over-elaborate; it may well be, unhappily, that it made its way to quarters not originally contemplated; it may be, too, that as the Commission proceeds it will gradually improve and perfect its technique for ascertaining information. I think that anyone in this House familiar with the activities of committees will realise that the questionnaire is one of the recognised means of securing information from the outside world; that if you read it out and emphasise a whole series of very searching questions it may seem an excess of cross-examination; but that, in its correct context, it may prove to be a valuable means of acquiring information.
Then it is asked, and rightly so, how long this task is going to take. I should have thought that it is obviously impossible to speculate on how long a task of this magnitude is going to take. It is a token of the magnitude of the task that one needs to ask such a question. But it is important for the Commission to indicate to the public what an enormous task lies ahead in reforming the whole of the English law. If simply one or two topics are selected and the Commission concentrates on these, as the noble and learned Viscount suggested, this would give the public no conception of what is needed in the way of law reform. One must take into account, too, the fact, as I gathered to be the 460 case, that the Commission will be adequately equipped with research staff; though I, for one, should wish entirely to commend the valuable suggestion made by the noble and learned Lord, Lord Reid, when he referred to the American practice of making use of young men who have just come from the universities to assist the judges as research assistants. In the same way, one would hope that the Commission would attempt to avail itself of a similar service by securing the services of young men who have just left universities and who are, no doubt, full of enthusiasm for law reform (an enthusiasm which tends on the whole to diminish with advancing years), and to take advantage of the energy and enthusiasm of those young men to assist in this very vital task.
For my part, I should welcome the attempt of the Commission to tackle some really serious codification problems and not merely to rely, as we so often do, on mere consolidation. In this way it is taking up some of the work which was begun by the great Victorian lawyers and then, unfortunately, dropped. But in this connection I think that close attention will have to be paid to the impact of our doctrine of precedent. I was very pleased to see in the Scottish Commission Report that it is proposed to examine the whole problem of precedent. I was a little disappointed to find that this point is not being considered at this stage by the English Commission. The English doctrine of precedent has reached a degree of rigidity which is quite unparalleled in any legal system; and I should be surprised to learn that an attempt to explore this doctrine and possibly to relax it in some way, would not excite the support of the noble and learned Lord, Lord Denning.
I should like also to commend the fact that the Commission has, in effect, divided its task between two objectives. So far as I can see, it has, on the one hand, taken up large-scale major tasks, such as the codification of the law of contract and of the law of landlord and tenant; and, on the other hand, it has selected a number of more limited tasks which are both urgent and important and which it can be expected it will be able to deal with in a much shorter space of time. This seems to be a reasonable division of labour. However, with the greatest deference to the view expressed by the 461 noble and learned Lord, Lord Denning, not only should I commend the codification of the law of contract, but I should hope to see at the next stage the Commission move to the codification of our commercial law.
I would venture to remind your Lordships that this exercise has already been carried out in the U.S.A. with conspicuous success. The Americans have now produced what they call the uniform commercial code, which has been adopted in 30 out of 50 of the States and which bids fair to become the universal law of the U.S.A. It was an enormous task and it was done in close co-operation—and I am sure that this is an aspect which will commend itself to the noble and learned Viscount, Lord Dilhorne—with businessmen, with commercial interests, with economists and so on. The result has been, I think it is fair to say, a conspicuous success; as is shown by the fact that State after State has been adopting this code and it has been applied now for some time. The general feeling is that it has done an immense amount of good to clarify and unify the law and to adapt it to present commercial methods.
So the order of priorities I would see in this matter is the law of contract—the basic principles of contract should first be codified—and then a move to the far more technical and specialised matter of commercial law. Then we have the question of the law of landlord and tenant which, as many noble Lords will know, is contained in innumerable piecemeal Statutes and in literally thousands upon thousands of reported cases. Much of it is antiquated and incongruous, such as the elaborate and highly technical rules we have in regard to notices to quit. Surely all these matters can be reduced to some sort of scientific and rational order. This is just the sort of task, one would have thought, that a Commission such as this could have undertaken so that at some stage we may hope to have a fairly clear and rational statement of the principles of law relating to landlord and tenant, instead of the vast sprawling textbooks with which the practitioner has to wrestle at the present time.
On the subject of family law, the criticism was raised, I think by the noble and learned Lord, Lord Reid, that this, particularly on the matrimonial side, involved an exploration of policy matters which 462 was really beyond the reasonable ambit of the Commission. But I would venture to point out that this is perhaps reading a little too much into Item X as it appears in the Programme, because, after all, the Commission have been very careful in their approach to the recommendation they have made, which reads:Recommended:that a preliminary examination be made of these three topics with a view to proposing, in the light of their social implications, the agencies to which they should be referred.In other words, the Commission are not saying, "We are proposing ourselves necessarily to embark on this inquiry," but, "We are going to make particular investigations and see whether we can recommend which, if any, body should explore these matters further". I should have thought this a very sensible and proper thing to do.
My Lords, I began by saying that this had been a happily brief debate, and none the worse for that, and I should not like to offend against this virtue by being the one speaker who had gone on too long. I would conclude by saying that I feel very strongly, as I observe that other noble Lords feel, that the intractable problem of the costs of litigation and generally our whole civil procedure is a matter which cries out for urgent scrutiny. One can only express the hope that in the second programme this aspect of the matter will feature largely. But this is a matter for the future. For the present we have an enthusiastic and extremely able Commission with, if I may say so, an outstanding and vigorous Chairman, which is embarking on a very important and well-conceived programme. I suggest that the Commission deserve our support and encouragement, and I hope they will receive it overwhelmingly.
§ 6.43 p.m.
§ LORD CHORLEY
My Lords, I should not like this debate to pass without paying my tribute to the Law Commission and congratulating it on its really splendid Programme which we have been discussing. It would not be of any use to the Commission if we were to go over it and dot the "i's" and cross the "t's"; and obviously constructive criticism is of more value than a plethora of congratulations. I should like to make a few remarks which I hope are in that direction. 463 I was interested by the speech of the noble Lord, Lord Airedale who, by taking a splendid practical example from a shipping contract, indicated the extreme importance of preventing these quite unreasonable terms from appearing in contracts. The noble Lord, Lord Lloyd of Hampstead, who interestingly brought in the American experience, might have pointed out that for over a hundred years now in most of the American States, and in the new Federal Code (which is not yet federal but will be very shortly), these matters are looked after. It is a great pity that the lead given in railway contracts in the middle years of the last century has been only partially followed in connection with shipping. There is an amusing story which perhaps I might take two minutes to tell about the late noble Lord, Lord Sumner, a very distinguished Member of your Lordships' House, who when practising at the Bar was defending a shipowner and relying on one of these extremely widely-drawn and detailed contracts. Mr. Hamilton, as he then was, said, "Well, I stand on my contract. My client the shipowner cannot be liable for the loss of these goods because of all these protective clauses which are in the contract." The judge looked at the contract for some time and then said to Mr. Hamilton, "Yes, this is a very widely-drawn contract. Is there any possible way by which the plaintiff's goods could have been lost against which your client has not protected himself?" Mr. Hamilton pretended to think for a moment and then said, "Yes, my Lord, there is one way." The judge asked what it was, to which Mr. Hamilton replied, "Theft, my Lord, by albatross."
I should like to look for a moment at some of the points here. It has been pointed out that the Law Commission has itself taken on much the largest job of work under this Programme, and it is in fact the case that it has taken over completely 12 out of the 17 projects, and two out of the remainder it has taken over partially. As everyone has said, that represents an enormous volume of work. I am sure that the noble and learned Lord, Lord Denning, is right that if the Commission is to do this it will take very many years. Surely the noble Lord, Lord Goodman (and I would take the 464 opportunity of adding my tribute to his most interesting and able maiden speech) was right when he said the Commissioners had realised this perfectly well and must intend to get a great deal of the work done in the kind of way indicated by the Act itself; which, in effect, gives power to put out sections of the work to appropriate bodies. The law departments in universities were particularly referred to at the time the Bill was going through Parliament. I am sure that in that way the Commission could get a great mass of this work done while at the same time retaining control over it.
I think the distinction between the two types of work is that in the case of a Commission like the Law Revision Commission on Criminal Law—the Sellers Committee—we have a body that is well-equipped and can take the whole thing over; and then, when it has been given a job and carried through its work, can present a report to Parliament for Parliament to decide whether or not the report is right. In the other sort of work, where a great deal of detailed investigation will he carried out possibly by university people, by institutes of law—such as the Institute of Advanced Legal Studies, or the Institute of Comparative Law—it is perfectly right and proper that the Law Commission should retain general control.
I think, my Lords, the Commissioners may well have been right in saying, in sub-paragraph (ii) of Paragraph 1 of their Note, that they haveexcluded those projects on which we cannot expect to make an immediate start.So far as the Commission is concerned, that is obviously a very sensible policy. But again it might well have been useful to entrust to one of the Law Institutes, or to one or two of the law departments in the universities, preliminary work on projects of this kind. If that were done, then, in due course, when the Commission itself was ready to deal with the matter, the necessary spade work would have been done in advance and the Commission would be in a much better position to go ahead.
It is an exceedingly ambitious and most interesting task to codify the law of contracts. I think that this fits in well with the work which is being done in America, to which my noble friend Lord Lloyd of 465 Hampstead referred, particularly in connection with commercial law. It is interesting to know that we really gave the Americans this task, with our Statutes. The Bills of Exchange Act, for example, was taken over in almost the same words by a number of American States, and provided the basis for a Federal Law; and several other commercial Statutes of the nineteenth century are to a large extent the basis of their new commercial code. An enormous amount of this law —over 90 per cent.—is common to both countries, and also to a large part of the British Commonwealth of Nations, including Canada, Australia, New Zealand, and much of it also, to India.
It is necessary that this aspect should be kept closely in mind by the Commission. They do not expressly refer to it in their Report, but it must be within their minds. In the Report of the English Commission there is an absence of reference to other jurisdictions within the Commonwealth, or to methods adopted in Continental countries, but it is interesting to notice (and the noble and learned Lord, Lord Reid, drew attention to them) the paragraphs in the Scottish Commission's Report referring to the need to look at other systems of law. The Act which establishes the Law Commissions specifically stresses them and, indeed, instructs the Commissions to have in mind matters of this sort. I hope that the English Corn-mission will work in the same way as the Scottish Commission, and will pay attention to what is going on in the United States; because the closer commercial relations between this country and the United States become, the more important it is that we should have systems which, so far as possible, keep in line.
The Scottish Commissioners, in their Report (I hope your Lordships will forgive my referring to their Report, though it is not directly a subject matter of the debate), say that they will keep closely in touch with the English Commission on the problem of the interpretation of Statutes. There are several other matters in the Scottish Report which are closely in line with what the English Commissioners are proposing to do—in particular, the whole problem of contract law, which is much the same in both countries, particularly in commercial law; and it seems to me important that the two Commissions should work closely with each other on these aspects.
466 There are one or two other matters in the Scottish Report, such as the doctrine of predecent, which was referred to by my noble friend Lord Lloyd of Hampstead, where there can hardly be any alteration in the law of Scotland without a similar alteration being made in the law of England, because obviously it would be a retrograde step if we diverged rather than came together in regard to these important matters. Therefore, I hope that the two Commissions will work more closely together than the first two Reports indicate they are doing at the present time. These are some of the matters which occur to me in reading these Reports, which I did with great interest and great appreciation. I am sure that when, in a few years' time, we come to study the Commissions' next Reports, we shall find that very valuable work has been done.
§ 6.55 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, it has been a lovely afternoon. I have enjoyed it. I feel quite spoiled. Your Lordships know my deep interest in the subject, and both the Law Commission and I feel deeply indebted to all noble Lords who have taken part in the debate, or indeed listened, and for the benefit of your Lordships' views on this First Programme of the Commission, and particularly, of course, to the noble and learned Viscount, Lord Dilhorne, for having put down this Motion which has enabled this discussion to take place.
Criticism is essential to everything, particularly to any body, and most particularly to a new body like this which is trying to do something which has never been done in England before. It is important that the Commission should start by not going down the wrong road. I feel it has been of inestimable value, both to them and to me, that your Lordships should have taken the trouble to consider this first Report and give us the benefit of your views about it. I think there have been misconceptions on one or two points, but this is inevitable, because, as this is the first time since the Commission were appointed that their work has ever been considered, naturally enough, Members of your Lordships' House cannot know what is in their minds.
467 Perhaps I should point out, to start with, that Section 3(l)(b) of the Act provides that such a programme shall come from the Commission from time to time. These are beautifully flexible words. They would enable the Commission to produce a 10-year Programme and then come along with another Programme ten years later, or a 3-month Programme and in three months conic along with another, or a 5-year Programme and then every year revise it so that it was a sort of rolling 5-year Programme. What they have done, in fact, is to produce a Programme.
The first question to be asked, I suppose, is: in what order are they going to consider these subjects? Are they going to finish off Item 1 and then go on to Item 2, and so on? The answer is—at least on those subjects which they are going to consider themselves, which are the large majority—they are going to start on all of them simultaneously. Indeed, they have already done so. I will ask your Lordships to consider in a moment whether that is a good thing or not. The next question, I suppose, is: how long is it all going to take? The answer is that that depends on the particular item. The Commission believe that there are items which can be completed, say, in three months and that there are other items which will take two or three years, and the remainder fall between these extremes. Of course, they are aware of the difficulties of estimates of this character and they may find that they have either underestimated or overestimated.
The next question, I suppose, is: how do they intend to tackle the job? They propose to tackle it in this way. They do not intend to be too rigid about it, but to learn by experience. They intend that each subject shall be, first of all, put in charge of one of the Commissioners, with one or more members of the legal staff, but not at this stage with a Parliamentary draftsman attached to them, though one will be available for consultation, if necessary. The first task of this section, which will be in charge of a particular project, will be to prepare a paper, which will answer two questions: first, what is the law in this field, and, secondly, what ought the law to be? There will 468 not ordinarily be much consultation at that stage. This will, in the main, be an internal examination.
When that paper has been prepared, it will then be considered by the full Commission, who will proceed to tear it to pieces and violently criticise the Commissioner who is responsible for the paper, with a view to being sure that it is right —although, when I say "right", it will still be provisional. When the document is in the form with which the Commissioners are satisfied—and it will, if possible, be written in English so that laymen who speak English will be able to understand it—it will then go to the Law Society, the Bar Council and the Society of Public Teachers of Law, apart from others. This will happen in every case.
It may be said: Would it not have been wiser, perhaps, to bring in the lawyers at an earlier, formative stage? The reason for this procedure is that this has been done already after full consultation with those three organisations, each of whom said, "We are very busy. We hope you are not going to ask us to do any work." This is quite natural, because barristers, solicitors and. I suppose, public teachers of law, too, are all busy men. The fact is that if you are going to ask them, "What do you think about the law of waste?", they have then to sit down and write a long screed; they have a lot of thinking to do first, and then they have to prepare a thesis; and busy professional men do not have the time to do this. But give them a paper that they can read and say to them, "Do you agree that this is a correct account of what the law is? Do you agree that these are the sort of changes which ought to be made?", then, with the minimum of work, you can get the benefit of their views.
Not only in each subject will the Commission consult the Law Society, the Bar Council and the Society of Public Teachers of Law, but they will consult any interests which are especially affected. The nature of those interests must depend, of course, upon the particular subject. They have not yet finally concluded whether, and, if so, to what extent, they will consult ordinary laymen. But I know that they are thinking of having public meetings, with the Press present, and plenty of copies of whatever documents they have prepared at that point, so that 469 any member of the public interested, and Pressmen, who of course are members of the public, can come along and put forward any views in their particular field which they want to put forward. Having said all that, may I just give this warning. They themselves are anxious not to adopt too rigid a pattern, and a process of attacking one subject which may be suitable to that subject will not necessarily be suitable to every subject. They will see how they go.
The noble and learned Viscount regretted that the Commission were not referring more matters to committees of experts. Speaking only for myself, I would respectfully agree with the comment of the noble and learned Lord, Lord Reid, on that: because it was partly to get away from committees, which, however expert, were such busy men and could only spare so little time that they would be only scratching the surface of the job, that we arrived at having a Law Commission.
The question of consultation was raised by the noble and learned Viscount, and I think I have explained that. As to the famous questionnaire on waste, I gather that the Commission thought that this was a subject on which at the earliest stage it might be desirable to find out how the laws of waste and distress, in practice, affected property owners. This questionnaire was, therefore, sent to a number of property owners and, I think, to one Government Department—not the Ministry of Health. But I am glad to know that the Commission and their staff are already working in very well with the legal sections of Government Departments. It appears that the Ministry of Health heard about this questionnaire, and they rang up and said: "Apart from hospitals, we are big property owners, and we should like to have some copies of this." They were asked how many copies they wanted, and they said 75. The Commission, of course, are not responsible for what is done with the copies. Whether or not this is a good plan, I do not know. Obviously the Commission will make mistakes: they happen to be human beings, and, like everybody else, they will live and learn.
The noble and learned Lord, Lord Reid, pointed out—and I am sure we all agree—the importance of dealing with 470 immediate points where something appears to have gone wrong; and I would suggest thatAinworth' scase is an obvious example. That, after all, was a case in which the Members of your Lordships' House who decided it, and reversed the Court of Appeal judgment, said at the same time that they were having to do that but were having to leave the law in an unsatisfactory condition.
The noble and learned Lord then asked about staff. At the moment, the Commission have eleven lawyers on their staff, and three Parliamentary draftsmen, making a total of fourteen. I hope that they will have a fourth Parliamentary draftsman in January. They have already obtained the services of at least one young man, if not more, with a fine academic record from the university; and, like the noble and learned Lord, I hope that they will go on bringing in some of the best lawyers of the year from the universities, and that it may be recognised by young men that this is a most useful thing to do before starting to practise.
As to going over the work of other committees, this is a slightly delicate subject. The Commission, of course, is a new body which has to win good will. How far it would be desirable that committees appointed by a Minister should feel that some other committee appointed by somebody else was going to review their work, I am not sure. The Commission have included in their Programme the law as to animals. The noble and learned Lord will remember that there was a Report of a Committee on this matter some years ago, and obviously nobody would consider this subject without considering the Report of that Committee. No Government has so far accepted that Report as right.
As to a simpler system of drafting, this is one of the things in which the Commission are interested, though, as we all know, it is a difficult field. The noble and learned Lord regretted that the programme did not include administrative law. I do not think I say anything that I should not say when I tell your Lordships that the Commission themselves are beginning to wonder whether it might not have been a good thing to include administrative law. But the set-up is so flexible that they can, next week or at any time, produce a 471 further Programme varying this one; and I know that they will bear in mind what your Lordships said about the prerogative rights.
So far as departmental committees are concerned, Item 2, I think it was felt that the Board of Trade had always shown a great interest in that field of law. I think that inter-departmental committees probably envisage both the Board of Trade and the Lord Chancellor, as well. The whole question of which items should be done by the Commission themselves, and which should be referred to an outside agency, is one of some difficulty. I am not sure that I myself (I do not think the Commission will mind my saying this, because it is entirely a matter of opinion) would agree with the way in which they have divided up the work. But here again they will see how things work out in practice.
The noble and learned Lord asked: why the Home Office'? The reason is simply that, whereas the Law Reform Committee is a Committee appointed by the Lord Chancellor, the Criminal Law Revision Committee is a Committee appointed by the Home Secretary. It is an existing Committee. It is his Departmental Committee, and, therefore, I cannot ask that Committee to do something: it must be done through my right honourable friend the Home Secretary. As to procedure, we should all agree that procedure is of great importance. The Committee presided over by the noble and learned Lord, Lord Evershed, made a very exhaustive examination of the procedures of the Supreme Court, and the Austen Jones Committee of the county courts, and we have had a fairly recent committee on magistrates' courts.
The next points were about more judges and congestion. I respectfully agree that these are important questions. I do not know whether the noble and learned Lord thought we had too many judges. I have always thought that we have too few, and that the convenience of witnesses and parties has to be set on one side in order that the judge may not have an afternoon off. We have always been so short of judges that, as your Lordships know, the whole of the work of the courts is entirely run by putting more into the list than the judge can try, in case somebody settles. I have 472 recently corresponded, through the Foreign Office, with all the Ministers of law of Western Europe, the United States and our own Dominions. I have asked them two questions: first, "What proportion of your annual budget is spent on justice other than prisons or police?" The answer, I have not been surprised to find, is that, with one exception, we spend less on justice than any other Western country. The second question was: "How many whole-time professional judges have you per million of the population?" The answer, as I expected it would be, is that we have far fewer whole-time professional judges than any other civilised country.
It was a particular pleasure to me personally, if I may say so, to hear the maiden speech of the noble Lord, Lord Goodman. Most of us have for long had the highest regard both for his legal learning and for his knowledge of its practical application. I venture to hope, now that we have heard from him, he will be able to spare time to come and assist your Lordships when we are considering questions of this kind. I appreciate the importance of the question of higher and lower courts, and of the organisation of the legal profession. I am not quite sure whether a new body of this kind would have been well advised to start by violently antagonising one-half of the legal profession. I do not know whether they had that consideration in mind or not.
I will deal with what the noble Lord said about costs, though it has no doubt been his experience, as it has been mine, that when you have been in a case and you know what the amount of the costs was, it bears no relation at all to the amount you see in the newspapers. I have never known a case in which a reporter has rung up a solicitor to ask him what the costs were. I hope I shall not be saying anything too depreciatory of reporters if I say that it has always appeared to me that when they want to talk about the costs of a legal action, they think of a figure, then double it, and then probably double it again; because in any case I know about, the amount put in the papers as being the costs of an action has never borne the slightest resemblance to what the true costs were. Nevertheless, I agree that it is a very important subject, and I am sure the 473 Commission will bear in mind the acute observation which the noble Lord made when he said that the Commission's programme bears much more a Queen's Bench mind than a Chancery mind.
The noble Lord, Lord Silkin, mentioned, as had the noble and learned Viscount, the Rent Acts. There is a difference between paragraphs (b) and (d). What I mean by that is this. Section 3(1)(b) of the Law Commission's Act, 1965, requires the Commissionto prepare and submit to the Minister from time to time programmes for the examination of different branches of the law with a view to reform.…This programme is a paragraph (b) programme. Paragraph (d) says:to prepare from time to time at the request of the Minister comprehensive programmes of consolidation and statute law revision.…This Programme refers to the codification of the laws of contract and of landlord and tenant, but this is a paragraph (b) programme. I have recently received from the Commission its first Programme, a comprehensive Programme of consolidation of Statute Law. I hope to be in a position to lay that before Parliament, if possible this month, or, if not, in January. This is a different subject and, of course, a most important one.
The noble Lord, Lord Silkin, regretted the absence of a solicitor from the Commission. This is not quite right. Professor Gower is a solicitor. I think it is some years since he practised, but he practised for a great many years of his life. There is also working with the Commission as a special consultant, for, I think, four days a week—so he is pretty well full-time—Mr. Stapleton Cotton, a very distinguished member of the Council of the Law Society and of immense experience.
In reply to what the noble and learned Lord, Lord Denning, said, I have already said that I think the question of agencies is a difficult one. The noble and learned Lord also observed that there was nothing in the Programme about Statute Law. That is because it is a paragraph (b) programme, and perhaps we could have another discussion when the Statute Programme is laid before Parliament.
I entirely agree with the noble Lord, Lord Airedale, on the importance of Item II: Exemption by Contract from Common Law Liabilities, of which he gave us 474 a splendid example. Knowing her interest in the subject, I could not help thinking at the time how much my noble friend Lady Burton of Coventry would have enjoyed it if she had been here.
I am grateful to the noble Lord, Lord Lloyd of Hampstead, for what he said. It is, of course, important that the Commission should be adequately equipped with research staff, and I should hope that they would be able to put out particular pieces of research to a university law school. But this necessarily depends on the views of my right honourable friend the Chancellor of the Exchequer. Again, the noble Lord made a point about codification, and also about consolidation. May I just say, before concluding, that the thing which takes most time is consultation. This is one of the reasons why it is good to have several subjects under examination at the same time. As I know from experience, it is quite useless to ask the Bar Council or the Law Society for a view as to the reform of any branch of the law and to expect an answer in at any rate less than three months or, it may be, six. Therefore, if you have a large number of projects in different stages under examination at once, it is really this point of consolidation which is of enormous importance. I fully agree with everything the noble and learned Viscount said about that. It is essential that they should fully consult, not only the practising lawyers and the academic lawyers, but also, of course, those who have special interests involved. But this takes time, and this is why there is no harm in their working on a large number of different subjects at one time.
Finally, as to policy questions, the Commission are quite clear themselves that questions involving matters of social policy are not questions for them; they are questions for Parliament. At the same time, I think there may be subjects about which one can say that, although in the end it is going to depend on a question of social policy, it is a great help to us that this body has set out first what the law is, and such reforms as have been proposed; what the effect of those reforms would be in other fields of law, and what appear to be the advantages or disadvantages of so reforming the law. They may, I think, save a good deal of 475 the time of Parliament in clarifying the issue, even on a subject which ultimately must be one of judgment because it depends on social policy.
My Lords, may I say again how deeply grateful I am, as I am sure the Law Commission themselves are, that at this early stage of their career they should have had the great advantage of having the minds of your Lordships directed to their first Programme, and say again how grateful I am to the noble and learned Viscount who has moved the Motion.
§ 7.20 p.m.
§ VISCOUNT DILHORNE
My Lords, at this late hour your Lordships would not wish me to say anything about many of the points which have been raised in the course of our debate, but it would be ungracious of me if I did not express my thanks to those noble Lords who have taken part. From my point of view the debate has been well worth while, if only for the information which the noble and learned Lord the Lord Chancellor has given us in the course of his reply. I think it is valuable not only for the sake of the Commission, but also for the clear exposition we have had of how the Commission propose to function.
I entirely agree with the noble and learned Lord that what takes time about this is the process of consultation. This has always taken a great deal of time under the old system, and from that point of view there is a great deal to be said for starting on all the subjects at the same time. The noble Lord did not answer my specific question in relation to animals, and whether there will be consultation with the N.F.U. I think it is important, and perhaps that point could be answered.
§ THE LORD CHANCELLOR
My Lords, I am afraid I cannot answer at this moment, not having had advance notice of that point. I would strongly hazard a guess that there would he such consultations, but it depends upon the Law Commission.
§ VISCOUNT DILHORNE
My Lords, when the noble Lord rose I was about to say that I assumed that would be so, and perhaps if that were the case I could be informed, so that any doubt which existed could be removed.
476 But, my Lords, the explanation which the noble and learned Lord has given deserves careful study. It is rather reminiscent of one of these games where there are a great many runners starting on a particular race, and no one quite knows who will get to the end first. The question of priorities under this system does not really arise, but I agree with those who, in the course of the debate, have stressed the urgent importance, as I think it is, of dealing with these conditions in contract exempting from liability. I know that the noble and learned Lord, Lord Denning, in particular, stressed that point; and there were others. I hope the Commission will try to hurry that matter on, if they can. I believe that a great deal of work has already been done on it at the Board of Trade, and if one were to select something out of the whole of this programme which would have an immediate impact I believe that to be the one topic on which there should be concentration.
I was grateful indeed to hear the notable speech of my noble and learned friend Lord Reid, and I was particularly pleased that the noble Lord, Lord Goodman, thought this a sufficiently important occasion for his maiden speech. I listened with the greatest care to what he said. I do not myself think he was guilty of a breach, or near-breach, of any Parliamentary convention. Indeed, the only controversial topic he touched on was not at all a Party political one it was the question of fusing two branches of the profession.
I should like to correct one misapprehension which the noble Lord, and I think possibly others, may have got from the speech I made. I was not attacking the Commission for compiling this questionnaire. Questionnaires can be useful. They may be of limited value, but they may also be of great help in showing people what points you want dealt with; and I was not criticising the conduct of the Commission with regard to this distribution of the questionnaires in regard to waste. What I think is too funny for words is the action of the Ministry of Health, who apparently thought, I suspect, that the questionnaire had something to do with swill, and not the law of waste, and therefore applied for 75 copies. What they did with them at the end of the day I cannot imagine; but I should like to 477 make it quite clear that I am not in any way criticising the Commission for sending out those questionnaires. My sympathy goes to the secretaries of the Regional Hospital Boards, who probably had to have hospital treatment after having had to try to answer them.
There are only two more points upon which I should like to touch. I was interested to hear what the noble and learned Lord the Lord Chancellor had to say about the Rent Act. My point was that the need is for more certainty, even if it is at the expense of greater length, in the Bills which come before us; and I think that the same point was made by the noble Lord, Lord Silkin. All Parties have been open to criticism in this respect. In the last Session, and the Session before, one could have pulled out a great many examples of clauses which were difficult to understand because they were too compressed, and it is the task of Ministers—a task which falls, I know, particularly on the shoulders of the Lord Chancellor—to try to get that situation improved.
I was glad to hear the observation made by the noble and learned Lord, Lord Denning, about a case on which he sat and which I think I conducted for the Crown,The Director of Public Prosecutions v. Smith. If I may be somewhat controversial, I would go so far as to assert that seldom has a case been so grievously misunderstood, and particularly in academic circles.
My Lords, I do not wish to say any more, except to thank your Lordships for taking part in this debate and to say that I had one fear when I tabled this Motion. I recognised that consideration of the programme put oat by the Commissioners would inevitably lead people to comment on parts of it to which they thought criticism should be directed, and I was frightened lest the impression might be created (I hope it has not been) of condemnation of the work which the Commissioners have so far done, and of their progress. It would be unfortunate if our careful review should lead to that impression, and it is certainly not the impression that I desire. I ask leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.