§ 2.57 p.m.
§ LORD LLOYD OF HAMPSTEAD rose to call attention to the First Annual Report of the Law Commission; and to move for Papers. The noble Lord said: My Lords, I make no apologies for inviting the House to discuss the subject of this Motion. True it is that law reform is generally regarded as a dull, dry subject which does not stir much heat or passion, at any rate unless it happens to touch upon such topics as capital punishment, homosexual offences, abortion or perhaps divorce. As I have mentioned divorce, perhaps I should make it plain at the outset that my understanding is that we are not this afternoon discussing the subject or the content of the Law Commission's recent paper on the grounds of divorce, as this forms the subject, as your Lordships will know, of a specific Motion, which is down for debate next Wednesday, standing in the name of my noble and learned friend the Lord Chancellor.
§ Law reform may be dull, but it is of great importance to the community. Our legal system has many qualities, but it also has many defects. It is cumbersome, complicated, difficult to understand, and often out of touch with present needs. We have more than 3,000 Statutes starting from the year 1235. I am aware that shortly we shall be reducing that number by some 33 if we pass the new Criminal Law Bill, but an ample residue of Statutes will still remain. There are some 350,000 cases contained in our Law Reports. All this well justifies the description "sprawling obesity" used by the distinguished Chairman of the Law Commission. A Victorian judge once described the state of our law as "studiously repulsive". Since then, I am afraid, far from having its face "lifted", it has grown still more repellent with the passing years.1267
§ One hundred and fifty years ago our greatest law reformer, Jeremy Bentham, pleaded for a permanent body to keep the law continuously under review. Maybe his name is not one to excite approval in this House, because he regarded all Upper Houses, and especially, I am afraid, your Lordships', with abhorrence as offending the first principles of good government. However, perhaps he would have relented if he had been able to be aware of the great contributions your Lordships have recently made to law reform. At all events, his project has now been realised, with the creation of the new Land Commissions, one for England and one for Scotland. I need not remind your Lordships that we owe this innovation to my noble and learned friend the Lord Chancellor, whose reputation is surely secure as one of our great reforming Chancellors.
§ My Lords, it is not easy to summarise the extent of the labours of our five Commissioners in one brief year. Of the seventeen subjects mentioned in the first programme, the Commissioners have themselves been directly engaged upon thirteen. On the one hand, there are vast enterprises such as the preparation of a code of contract law, a code of the law of landlord and tenant, an exhaustive study of the whole foundations of our family law, and an inquiry into the law relating to the transfer of land—an immense subject in itself. In addition, there are investigations into many special topics or fields of inquiry in our criminal law, our law of civil liability, and in other spheres. Nearly thirty working papers and interim reports have so far emerged from this hive of industry. We hear a lot about productivity these days, but I think the results being achieved by our five Commissioners will need a good deal of beating in any field of activity.
§ Some anxiety was expressed during our last debate on this subject lest this process should be conducted in the atmosphere of an ivory tower. Nothing could be further from the truth. The Annual Report of the Commission makes plain what I think was generally known to all those who have been closely following the activities of the Law Commission: the businesslike, down-to-earth way in which they are tackling the problems. Their general procedure is both novel 1268 and, I think, valuable. They start by preparing working papers containing the tentative lines of thought on which the mind of the Commission is moving. There is nothing at all secret about these papers. On the contrary, their circulation is as wide as possible and includes distribution to the Press. This forms a prelude to close consultation, not only with all branches of the legal profession but with all relevant commercial, professional, governmental and consumer interests. The Law Commission see themselves as engaged in a continuing dialogue with both specialists and the public. At the same time, they are doing all they can to make sure that their work is based on adequate research and expert surveys.
§ It is particularly gratifying to see the close and harmonious co-operation across the Border which exists between the two Commissions, English and Scottish. This will surely lead to a harmonisation of our two legal systems which will be of benefit to both. Serious attention is also being paid to the experience of other countries, especially those with a Common Law background. There has really never been anything like this before. Of course, we have always had committees doing admirable work in the field of law reform, but all of them have inevitably suffered from certain fundamental defects, which only a permanent, full-time body such as the new Law Commission could avoid.
§ Here I should like, if I may, to pay a tribute to the members of the Commission, and to their distinguished Chairman, Sir Leslie Scarman, in particular. All who know Sir Leslie and have seen him at workregard his selection as Chairman as an inspired choice. No one will continue to think of law reform as dull who has seen the tremendous enthusiasm with which Sir Leslie and his colleagues have thrown themselves into this great undertaking. Particularly noteworthy has been the energy with which they have embarked upon the task of communicating with professional bodies of all kinds, with non-professional bodies, and with the public at large. By means of addresses, lectures, articles and broadcasts, they have been tireless in arousing interest in, and understanding of, the role of the Law Commission and in securing support for their enterprises. The fact that they have received 632 law reform proposals, of which the Commission 1269 regard all but 5 per cent. as deserving consideration, is sufficient evidence of the support they are receiving. Addresses delivered by Sir Leslie overseas have also aroused great interest in other countries, and we may look forward to doing a considerable export in law reform, which will add to our international prestige, even if this trade may not be quite of the kind to gratify my right honourable friend the Chancellor of the Exchequer.
§ My Lords, it is obvious that I cannot, on this Motion, discuss all the many points of interest contained in the Annual Report. In order to be as brief as I can, I therefore intend to concentrate on a few general points. One of the Commission's main conclusions from the experience of their first year is that "haste is the enemy of sound law reform". What must always be remembered is that the true measure of achievement of the Commission is not the actual volume of potential reforming legislation produced at a given time—the sort of test that might satisfy a time and works study consultant—but the amount of care, thought, discussion and research which has gone into the preparation of the Commission's proposals. In this way we can hope to obtain from the Commission for the first time in our legal history a truly professional approach to the whole problem of reforming legislation.
§ It is no criticism of the devoted and valuable work performed by part-time bodies in this sphere to say that their inability to concentrate single-mindedly on a problem or to engage in adequate discussion and research has tended inevitably to give their work a rather amateurish air. But the day of the amateur in law reform, as in other spheres of our national life, is coming to an end. It is characteristic of this new professional attitude that the Commission are already giving thought to how computers might be used, for instance, to render more accessible the huge, indigestible mass of our Statute Law.
§ The old fallacy that there is a sphere of "lawyers' law" which is purely technical, and can be divided from legislation involving policy, retains its hold on few serious students of the law to-day. All law inevitably involves policy decisions of some kind. It is therefore idle to maintain that the Law Commission should 1270 in some way avoid investigating and making proposals regarding policy matters.
§ Yet some topics are a great deal more controversial than others. But even on issues where great controversy may exist it is still possible for the Law Commission to make a substantial contribution to the development and reform of the law. It is open to them, for example, to conduct or initiate the basic research into the background and the social consequences of the law, to explore the various possibilities that might lie before Parliament if change is to be introduced, and to demonstrate by reasoned discussion and examination of the facts what solutions may or may not prove workable.
As the Chairman of the Commission has pointed out, their real function is to act as an advisory body to Parliament. In giving advice to this new client, which is Parliament itself, it is not for the Commission but for Parliament to settle the controversial issues. The role of the Commission in giving advice is to assist Parliament by pointing out the implications of various possible courses of action and their feasibility. Only the other day we had an admirable illustration of just the sort of contribution the Law Commission can make to this kind of topic—in their paper, aptly named The Field of Choice, on the grounds of divorce—a paper produced, your Lordships will probably agree, with remarkable and commendable speed. This is not the moment, as I have already remarked, to discuss the contents of this paper, since the House will no doubt be doing so next week. Of course, Parliament is not bound to accept the advice of its legal adviser on this or any other matter. But, aided by such expert advice, Parliament must then be in a much better position to address itself effectively to the problems involved. The Field of Choice should certainly serve, as one leader-writer wrote the other day,
to extract some of the emotional heat from the argument.
Just as war is too serious a matter to be left to the Generals, so we are told that law reform is too serious to leave to the lawyers. It has been truly said that some lawyers do not believe in law reform at all while others believe in it too much. The Commission have been criticised on
the ground that the membership is confined to lawyers, and it has even been described as a "legal closed shop". I think it is a mistake to denigrate the contribution that lawyers have made, and are making, to the process of law reform. Leading members of the legal profession have always been in the forefront of law reform, and this is certainly so, and increasingly so, at the present day. Of the 632 proposals for law reform that have been put before the Commission so far, no fewer than 360 emanate from the legal profession. All the same, this does not altogether answer the question whether it would not be wise to expand the Commission to include one or two lay members, as lawyers are apt to designate the non-lawyer—possibly because law seems to have some similarity to theology.
§ Should we not, for example, have a sociologist or a businessman as a permanent, or possibly part-time, member of the Commission? I believe that the Commission themselves are not hostile to this notion, though they apparently regard it as premature. With great respect, I am not altogether persuaded of this. Surely, the advice to be tendered by the Commission to their client, Parliament, might be still better if it emanated from a body containing a non-legal element. All the same, I recognise that this aspect should not be overdone. I should certainly regard two additional members of this kind, possibly part-time, as quite adequate, at least for the moment. Perhaps an even greater improvement would be if we were to have a lady member. We all know the invaluable contribution that the noble Baroness, Lady Summer skill, has made, and is making, to law reform; and I must say, speaking for myself, that I am delighted that her name appears on the list of speakers this afternoon.
§ When the Commission were initiated many people conceived their role as that of a supreme organising body for all kinds of law reform. Although the setting up of the Law Commission marks an important step towards a unified direction of this kind, there still remains a great deal of fragmentation in our approach to law reform. There is still a strong disposition to set up committees or to engage in new legislation on very important law reform matters without 1272 reference being made to the Commission at all. One striking example is, of course, the cleavage between reform in criminal matters and reform in civil matters. Although the Commission are, in fact, concerning themselves with criminal matters, the really important exploration and initiation of criminal law reform lies elsewhere. I appreciate that in this instance there are special historic reasons, but must these necessarily be decisive?
§ Nor is this the only example that can be given. The Law Commission have seemingly not been consulted on either the Land Commission Bill or even the proposed legislation on leasehold enfranchisement, despite the fact that the Law Commission are particularly concerning themselves with the law of landlord and tenant. Her Majesty's Government have just published an amending Companies Bill. Here is a field which obviously calls for a great deal of rethinking. This stopgap measure is doubtless necessary as a matter of urgency, but what I should like to see is an investigation by the Law Commission, who, after all, include one of our most eminent company lawyers, of the whole structure of our present company law.
We have been told by my right honourable friend in another place that "the whole philosophy of our company law" is to be reviewed. Should this not preeminently be a task for the Commission? On this subject I entirely and respectfully agree with the recently expressed view of the noble and learned Lord, Lord Wilberforce, when he remarked that:
we lawyers need to re-orientate our thinking in this whole field
—that is, of company law.
§ I appreciate, of course, that our five Commissioners cannot be expected to do everything, and will have, as they are already doing, to delegate or leave some matters for specialist consideration—as, for example, in the case of the Winn Committee on personal injury litigation. But surely the Commission should not be deprived of the opportunity of retaining an overall view of the whole programme of law reform and ensuring the appropriate interrelation between all the various projects and the investigations going forward. Even in the realm of Private Bills there is important scope for consultation with the Law Commission. I need hardly remind your Lordships of the valuable 1273 aid which the Commission rendered to the noble Baroness, Lady Summer skill, as she herself told us, in connection with her Matrimonial Homes Bill.
My Lords, one matter which is causing a good deal of anxiety is whether Parliament is going to find the time to implement the recommendations of the Commission, however meritorious these may be. The Law Guardian recently asked this question:
The Law Commission is proving its ability to generate the potential, but can the old-fashioned motors of parliamentary procedure convert it into useful achievements?
Are we going to have the same sort of thing that is happening in much of our urban road development at the present time, where short stretches of road are widened and cleared, and a fly-over or a tunnel inserted, only to move the blockage a little further down to another major bottleneck?
Addressing the Law Society's Annual Conference the other day, the noble and learned Lord, Lord Devlin, suggested that Bills concerning law reform should receive their main consideration in this House. The House of Lords, Lord Devlin assured his audience,
has now practically succeeded in throwing off its disreputable connections with the nobility.
It may be that, put like that, this approach will not commend itself to all of your Lordships, but I certainly think that support will be widely felt for the view that much scarce Parliamentary time could be saved if Lord Devlin's suggestion came to be accepted.
We have also at present a Joint Committee on Consolidation Bills. Might it not be possible to devise some comparable procedure for speeding up the flow of law reform legislation of a specialised and less controversial character? Such a Committee might be able to advise Parliament as to whether particular Bills dealing with law reform could be spared the full scrutiny of Parliament. Such a Committee might possibly be assisted by the attendance before it of one or more of the Law Commissioners concerned with particular pieces of legislation. These, of course, are only tentative suggestions, but I hope that they and similar suggestions which have been made elsewhere will be carefully considered. A short time ago The Times stated:
Achievement of the reform of Parliament is rather like blowing against the side of a house. It takes an immense amount of wind to produce an undetectable result.
I hope that events will belie this rather gloomy diagnosis.
§ What is to be the relationship of the new Law Commission to the process of law-making by the Judges? It is perhaps a faint irony of legal history that the recent and almost revolutionary ruling of this House in its judicial capacity, to the effect that it will no longer regard itself as necessarily bound by its own previous decisions, has come just at the moment when the role of the Judiciary in creating new law seems likely to be diminished by the functioning of the Law Commission. Although it cannot, with all respect, be said that all the recent examples of judicial lawmaking have been particularly happy, I am not one who regards the making of new law by the Judges with disfavour; nor do I think that this role is likely to be extinguished as a result of the activities of the new Commission.
§ All the same, if the Parliamentary wheels can be made to grind more speedily, the function of the Commission in taking note of anomalies immediately they emerge, and advising Parliament as to the appropriate remedial action, seems a more efficient way of improving the law than simply waiting for unsatisfactory decisions to be overruled or changed in the course of litigation. Perhaps one can foresee a new relationship developing with the Law Commission as a sort of intermediary between the courts and Parliament. Far from threatening the independence of the Judiciary, I am confident that this would enable the Judges to do their work even more efficiently than they are able to at the present time.
§ My last point is a truly fundamental one with which I think your Lordships will have some sympathy. It concerns the whole question of the drafting and interpretation of Statutes. I have the greatest admiration for the skill and learning of our Parliamentary draftsmen, a body of devoted workers who are sometimes most unjustly and unfairly abused. The fact remains that they are the victims of a most unsatisfactory system. Instead of their working in virtual harness with the courts in a joint effort to produce the desired result, there has, in effect, grown up a sort of contest between the draftsmen 1275 and the courts. For this, and other reasons which I have no time to explore now, we so often encounter, as we in this House have good reason to know, drafting of incredible obscurity and complexity. I am therefore glad that this whole subject has appeared as an item in the Law Commission's programme. This is just the sort of inquiry concerning which the Law Commission can make a unique contribution. The Commission could play a vital role in educating all lawyers towards a new approach, which may relieve us of some of the legislative tangles and obscurities which perplex lawyer and layman alike at the present day.
§ For my part, I am unrepentant as to the need for codification in some branches of our law, and my confidence as to the value of this process is increased by the recent success of the admirable United States Uniform Commercial Code which has transformed the position of commercial law in America. It seems plain that the Common Law just cannot, as in the past, be left to develop, almost by accident, the principles of our law. But, without an altogether new look at drafting and interpretation, it seems to me that codification is likely to prove of limited value.
§ The creation of the Law Commission constitutes both a challenge and an opportunity. What we must not delude ourselves into thinking is that, now that the Law Commission has been created, the battle for law reform has been won. It is only just beginning. It may be too pessimistic to describe this as a new Hundred Years' War, but it is one upon which we will be heavily engaged for at least another generation. No one is more aware of this than the Law Commission themselves. In the short period since their appointment the Commissioners have earned, and I think won, the confidence of Parliament, of the legal profession, and of the public. They surely deserve our support in this new enterprise, and I hope they will continue to receive it in full measure. My Lords, I beg to move for Papers.
§ 3.27 p.m.
§ LORD REID
My Lords, I am sure that I speak for every one of your Lordships when I say that we thank the noble Lord, Lord Lloyd of Hampstead, most warmly for bringing this subject to our attention this afternoon. We also thank 1276 him for the wealth of thought which he has put into the preparation of his remarks, so that he has given us a broad and, if I may say so, balanced picture of the situation. I think that my next task must be to add my thanks to his in thanking the Law Commission, and to congratulate them on their most successful first year's work.
I do not wish to cover, so far as I can avoid it, ground which has already been covered by the noble Lord, and therefore I shall try to say nothing on the points which he has dealt with, but merely say a few words on points on which I venture to disagree with him slightly. I am the more pleased to be able to congratulate the Commission because I am bound to say that when I saw their first programme I thought they had bitten off too many subjects at once; but I now see that they are able to cope satisfactorily with that enormous programme, and I quite see the reason why they tackled so many different subjects. I was going to read it, but I will content myself by saying how much I agree with the noble Lord when he singles out the paragraph in the Report which draws attention to the disasters that could follow too hasty action. I quite see that we cannot expect a large flow of results for some time on any of these large topics. The Commission say that they are proceeding by trial and error, and there can be no better or scientific method of proceeding than that.
I, too, should like to put at the forefront of my remarks—I will do it now—some remarks about draftsmen. It is obvious, reading between the lines of the Report, that the weak point, if there is one, in the organisation is a lack of skilled draftsmen. I know that draftsmen cannot be conjured up overnight; but we have now had a considerable time, and I would venture to ask my noble and learned friend on the Woolsack what progress is being made in amplifying the supply of draftsmen, both in England and in Scotland. Strictly speaking, the Scots Report is not before us, but I know your Lordships will wish to congratulate also the Scots Commissioners who, with the rather smaller need for reform than there is here, have also done an extremely good year's work. I was particularly interested in what is said on page 21 of the Report with regard to bringing in draftsmen at an early stage. I think that in a number 1277 of cases that would improve the form of the legislation. We have had a very troublesome Act (I will not say which it is) to deal with two or three times in recent years, and I feel sure that a great deal of the obscurity—and it is terribly obscure—was caused by inadequate instructions by the Department to draftsmen. If the draftsmen had been brought in at an earlier stage, I feel that some of the monstrosities in that Act would never have found their way into it.
Then the question arises: in what form are the Commission going to make their proposal to the House? The Scots Commission are quite clear on that subject. They say that they want to report their proposals in the shape of draft Bills, and I entirely agree with them that this is the most satisfactory way. But they cannot do that unless they have an adequate supply of draftsmen, and I hope they will find a sufficient number within a reasonable time so as to be able to append to their report a draft Bill—a Bill which no doubt would require a little amendment in the light of criticism, but which ought to give us the bones of the legislation. This practice would have two admirable effects. In the first place, it would enable legislation to follow more speedily on the Report. In the second place, it would give the Commission a chance to do what I feel sure they would like to do: that is, to make some experiment in simpler methods of drafting. It is no good complaining about present methods of drafting unless you can supply a better alternative. At the moment the only people who are in a position to try to do that are the Commission. I entirely agree that that would be a very good way to try to improve the form rather than the content of the law.
I believe that this will go hand in hand with another matter upon which the noble Lord touched, namely, the interpretation of Statutes. I am bound to say that on this matter I find a little obscurity in the Commission's Report—and this is not surprising, because they have not had sufficient time to clarify this very difficult topic. I will say only a few words on this subject now, because I should like to emphasise the difficulties which anybody at present engaged in the law sees about changes in our methods 1278 in this respect. The first thing is this. Do not let us have some new method which will disturb the certainty of the law as it exists at present. One may say what one likes about the way in which Acts of Parliament are interpreted in the courts at the moment, but the proof of the pudding is in the eating, and in ninety-nine cases out of a hundred counsel can advise in advance what the court is likely to say a particular section means, because the court acts on the words of the section which are plain for everybody to see. But if we became involved with the spirit of the Act, I doubt whether counsel would be able to advise with anything like so much confidence.
What is meant by "the spirit of the Act"? A great many of our statutory provisions are still in the form in which they were a hundred years ago. They may have been re-enacted in a Consolidation Act, but they are still in the same form. If we are looking for the spirit of the Act, do we go back to what Mr. Gladstone said in 1869 in order to find out, because the words are the same, or does the spirit change while the words remain the same? In other words, do the same words means something different to-day from what they meant twenty years ago'? I know that the Supreme Court in the United States (which has to deal with a Constitution that is very difficult to amend) perforce must say that the same words mean something different to-day from what they meant fifty years ago, but I should be very sorry if we were driven to that extremity. Here we have the possibility, and I think the growing possibility, of making amendments to bring these matters up to date. Let us avoid any idea that words change their meaning as time passes, because I do not believe they do.
We are always told that construing Acts of Parliament is a mystery, and books have been written about the subject. I always advise young men "Don't read them", because the rules are extremely simple. One looks at the words of the Act and asks, "What is their natural meaning?". That requires a knowledge of the English language. Then, having found out if they have one—and sometimes they have not; but assuming the words to have a natural meaning—one sees whether the natural meaning is going 1279 to produce reasonable consequences. If it is, one adopts it. If it is not, one looks for another meaning. It is extremely difficult, in fact almost impossible, to draft any Act of Parliament or any other document which is not ambiguous. One can almost always find a secondary meaning if one wants to. Then you ask, "Is this going to produce a reasonable result?". If you think it will, well and good. If it does not produce a reasonable result, then what I do is to say, "Parliament got us into this mess; let us leave Parliament to get us out of it". That seems to me to be a proper approach. If it is as simple as that, what is all this about "the spirit of the Act"? I am not going to pronounce in advance that it will not work. I am waiting with avidity to see what these new ideas are, but I am not waiting with any optimism.
The second matter I should like to mention is this. I make no complaint about the Commission, because, of course, they cannot tackle everything at once, but I venture to think that perhaps they have not given a high enough priority to questions of procedure and evidence. I know that they are doing something. I know that they are doing, or have on hand, very valuable work with regard to damages; I know that they have received from the noble Lord and others a memorandum on this very subject, and I very much hope that that will eventuate in practical results within a comparatively short time. But we must remember that procedure and evidence affect every case that comes before the courts, whereas the number of cases in which difficulties occur, either in the substance or the form of the law, is certainly not one in ten, and probably not one in fifty. Therefore, it is very much more important, from the point of view of the practical man who wants to get his case dealt with speedily and effectively, that our procedure and our evidence rules should be right than that our law should be reformed. So I would venture to say that this ought to have a very high place in the second programme of the Commission.
I do not want to weary your Lordships by saying very much about particular topics, but there are one or two which I should like to mention. To 1280 begin with, I would rather take issue with the noble Lord, Lord Lloyd of Hampstead, on the question of lawyers' law. Of course, all these things shade into each other, but to my mind—I may be very old-fashioned—there is a very great difference between what has been called lawyers' law and law which is the outcome of policy decisions. Policy decisions are apt to find the people split into some ratio which we see in the Gallup Polls, but it is something approaching equality. But with lawyers' law, once the matter has been explained, whether to lawyers or laymen, it is very rare not to find 90 per cent. or more on the one side, and only a very few objectors on the other. That is one difference.
The other difference, of course, is that only lawyers are able to deal with lawyers' law, whereas other topics, such as divorce, which we have to discuss next week and which I shall therefore avoid discussing to-night, are entirely different from lawyers' law. They are pure questions of policy, and to draft and enact the law once the policy is right is almost child's play; whereas in lawyers' law it is the intricacy of the legal repercussions which you have to have in view much more than broad questions of policy.
One matter on which I agree entirely with the noble Lord, Lord Lloyd of Hampstead, is that the Law Commission ought to be brought into the field in every sphere of true lawyers' law. There is a great deal in the criminal law, as we have learned since many more criminal appeals have come up to this House sitting judicially than used to, which is pure lawyers' law, and we find a great deal which badly needs amendment. We try as hard as we can—at least I think we do—to introduce some kind of order into the darker places that are disclosed in the appeals which come before us, but none of these questions is really a broad question of policy at all. Therefore, I entirely agree that this matter ought to be taken out of the hands of the Home Office and put in the hands of the Law Commission. I very much hope that more will be done in that respect.
Now let me come to a few points. To begin with, I think that, although the reform of the law in that sense is much more important than codification and consolidation, both must go together. After 1281 all, the practitioner gets along quite well with an uncodified, unconsolidated law. It would be much better to have it tidy, but it is not nearly so urgent, in my view, as improving the substance of the law by reform in the proper sense. Let me take just one topic as an example. In Item XII the Commission are proposing to give priority to such questions, as the recognition of foreign divorces. In a sense, that of course has to do with policy, but it has very much more to do with the practical way in which it can be worked out in accordance with the ordinary principles of International Law; and I very much hope that we can tackle that, which is a Commission matter, whereas divorce is not.
Let me come to one point in particular on which I should like to say something. I am quite horrified to find on page 23 of the Report, where the Commission deal with income tax, that all they propose is consolidation. To try to consolidate the Income Tax Acts to-day is only to postpone the attempt to clear up the appalling things found in looking into the various sections. It is not only obscurity; it is plain injustice. Obscurity everybody knows about, but in the last year or two we have had a string of cases coming up under tax evasion sections where people who had no intention at all to evade, did nothing in the least unusual, nothing in the least blameworthy, had fallen into the trap of these sections which are quite unknown to the ordinary man and almost unintelligible to the lawyer.
It really is no credit to our legal system that those sections should be allowed to remain on the Statute Book, and I venture to ask that at least those sections should be redrafted as soon as possible. They are so clumsy. Some of them the professional tax evader knows about and avoids quite easily, and it is only the innocent, ordinary man who gains no advantage by what he is trying to do—he does not try to gain an advantage—who falls into the trap. The Revenue, of course, are bound to come along—they must administer the law; it is not their fault—and bring this succession of wholly unjust demands for taxes where one might almost say the change of a mere comma entails thousands of pounds of liability.
I venture to suggest to the Commission that if they have not the time or, worse, 1282 are not allowed to redraft these sections they should consider a new section, to the effect—and this, at least, I presume would be within their jurisdiction—that where a taxpayer proves that he had no intention of gaining any tax advantage by what he did, and when he further proves that in fact he gained none—where, in other words, there has been a perfectly innocent and ordinary transaction—that should be a good answer to a demand under these monstrous sections. I would think, subject to what my noble and learned friend the Lord Chancellor may say, that although the Commission may, so to speak, be warned off the grass so far as amending the Income Tax Acts is concerned, they would be within their rights in making a proposal of that kind.
Finally, may I raise one other matter? I am not sure whether or not my noble and learned friend can answer me to-day. I am not going to say anything about the contents of the book The Field of Choice, nor am I going to complain that the Commission were diverted from their ordinary work to deal with it, because I think it is a very valuable work. But what I do complain of is this, and I complain now because it may happen on something else. The Report was released to the Press on Sunday. It was not available in the Printed Paper Office until Wednesday. Now I cannot think why that should have been.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, if the noble and learned Lord will forgive me, may I say that it was not released to the Press at all on the Sunday. One newspaper appears to have ascertained from somewhere a garbled version of the contents, though I do not think even they had a Report. But two other Sunday papers "pinched" it from the earliest edition of the first one.
§ LORD REID
My Lords, all I can say is that, except for one point, they had very remarkable foresight. There must have been a leak somewhere. I entirely accept that there was no formal release, but a leak is almost worse than a formal release because it shows that something is wrong. They got it very nearly right, but not quite. Their mistake was that they said divorce by consent was recommended; whereas, of course, the Commission have been very careful 1283 not to recommend anything—and I am sure they were horrified to see those words. Perhaps my noble and learned friend will be able to assure the House that leaks of this kind will not happen again, because it is of the utmost importance that the Commission should preserve their growing reputation for impartiality and should not be misrepresented in the Press as having made recommendations on such a controversial subject as divorce.
My Lords, in conclusion, let me say that I very much welcome the Commission's statement that they hope to have a flow of proposals coming forward very soon. I am sure we shall look forward with pleasure to those proposals, and I feel sure that, in so far as your Lordships are concerned, we shall facilitate their passage into law to the utmost possible extent.
§ 3.51 p.m.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, there area good many matters within the Report of the Law Commission in which I feel a great interest, but just now, for a moment or two, I want to mention only one matter which may very likely escape notice in this discussion, and that is a proposal which bears specially upon Archbishops and the deans and canons of cathedrals in this country. It is the proposal to abolish the ancient penalty of praemunire. Praemunire is a terrible penalty. It means outlawry, together with the forfeiture of all property. Personally, I should honestly prefer the penalty of execution, which was the fate of several of my predecessors and is a penalty which has at least the possibility of a martyr's crown.
There is no doubt that churchmen generally have desired the abolition of this savage penalty. In 1938 a Measure was promoted by the Church Assembly for the abolition of the penalty of praemunire, but when it reached Parliament the Ecclesiastical Committee of both Houses recommended that the legislation was inexpedient because it was controversial. Then, more recently, in 1954, the Commission on Crown Appointments to Ecclesiastical Offices, presided over by the noble Lord, Lord Howick of Glendale, recommended the abolition of this penalty. I just feel it to be cour- 1284 teous and appropriate that I should take this chance of saying how gratifying it is that, without any initiative from the Church, and within a general consideration of the reform of the laws of the country, it is now proposed that this penalty should disappear.
§ 3.54 p.m.
§ LORD GOODMAN
My Lords, I should like to join with the noble and learned Lord, Lord Reid, in congratulating the noble Lord, Lord Lloyd of Hampstead, on having brought this matter to the attention of the House, and particularly on the way in which he presented it to us. It was, if I may say so, presented with clarity and cogency, and with an obvious careful thought to all aspects of the Report. I do not think that, within the time available, we could have had a better survey of the field, and I am sure we are all greatly indebted to him.
It must be a matter of special gratification to the noble and learned Lord the Lord Chancellor to see one of his own children praised in this fashion. It is, I think, a very open secret that the Law Commission were the brainchild of the Lord Chancellor; and when the noble Lord, Lord Lloyd of Hampstead, says that on that account, and on that account alone, if there was nothing else to add to the record, the Lord Chancellor would go down in history as a great reforming Lord Chancellor, I do not think this is in the least hyperbole. It is a simple statement of fact. I am not accustomed to waxing either fulsome or lyrical, but I think this document is a momentous and, it is not extravagant to say, I think, an epoch-making document.
That is not to say that I do not think there are matters in it which can be criticised, but I do not intend to criticise them this afternoon. It is not that I want it to be thought that I have nothing but unqualified praise for the document, but because any lawyer who started an investigation of its detail this afternoon, and who had the interest in the subject that I and many of my colleagues here today have, would occupy this House for the rest of the afternoon, and probably for several ensuing days. That is a terrible thought, and I do not intend to embark on a discussion of that length. It is therefore necessary to limit one's remarks to generalities.
1285 The first thing I should like to say is that it is particularly gratifying that the Law Commission should have redeemed itself in this fashion after a start which was the subject of considerable criticism—not all of it, if I may say so, entirely fair. There was a good deal of criticsm of some of the personnel of the Commission. I think it is fair to say this since all this has been totally dissipated and we now see what an extraordinarily adroit and clever selection of men was made by the persons responsible for choosing them. Obviously, no one could have improved on Sir Leslie Scarman; and if, by any chance, he happened to be here today to hear the remarks that are being made, and will be made, about him, if he were not the man he is, he might possibly become vain. But I hope that no such fate will overtake him. Nor, I think, could one improve on the other members of the Commission.
I venture, however, to endorse the remarks made by the noble Lord, Lord Lloyd of Hampstead, about the size of the Commission. I think it is too small, and I personally think it would be a very good thing, and very encouraging to public confidence, is there were to be added to the Commission members who were not lawyers. Now I have nothing to say on the question of any particular selection of members. I see no virtue, if I may say so (and I say it with temerity in view of the presence of certain ladies here), in selecting a woman member just because she is a woman. I have never found the rights of women particularly advanced by women as such. I believe that members should be selected for their specialised qualifications.
In my view, the addition of some lay members to the Commission would be an exceptionally good thing. We have had of recent years very effective illustrations of how lay members work with lawyers. The Restrictive Practices Court is a particularly good illustration of how that happens. That Court, I am sure, has been greatly enriched by the presence of lay members. Then there is the Performing Right Tribunal. One could go on to instance any number of organisations where lawyers take, of necessity, because of the specialised knowledge required, a primary and leading role, but where the addition of lay members has had a special value.
§ LORD CONESFORD
My Lords, I understand from the noble Lord that he is advocating an amendment of the Act, because, of course, under Section 1(2), what he is asking for cannot be done.
§ LORD GOODMAN
My Lords, may I say that I am not in the least daunted by the possibility of having to amend the Act? If it is necessary to amend the Act to do this, then I think the Act should be amended But I am most grateful for the intervention. I had not realised that what I proposed would require an amendment of the Act, but I should not regard that as a particularly high price to pay to achieve a result which I regard as important. I think that lay members added to this Commission would be a very valuable addition indeed. Also, I think the numbers of the Commission are not sufficient for the magnitude of the task they have undertaken.
Reverting to this Report, I think it is an altogether splendid document, not because of the detail but because of the philosophy it discloses and because of the working method. May I add here that I entirely dissent from the noble Lord, Lord Lloyd of Hampstead, on the question of the degree of scrutiny by Parliament? In my view, it would be a disservice to the Commission to advocate at this stage that there should be any relaxation at all of the ordinary degree of Parliamentary surveillance over matters which come before Parliament from the Commission. The time may indeed come when this is appropriate; but this is not the moment.
The Commission have to establish confidence. People have to realise that this is a research organisation: it is not in any sense a legislating organisation. It is an injustice to the Commission to suggest the contrary, because nothing could be more abundantly clear from the terms of their own Report, their own document, than that they have a total recognition of this fact. The Commission nowhere seek to intrude on the legislative functions. I believe that this is of the very greatest importance, and I certainly do not think for a moment that we ought to contemplate relaxing legislative measures in favour of any Report which comes from this Commission.
It is all too easy, in one small subsection of an Act, or in one tiny paragraph in a memorandum, to effect a most 1287 important change of which no-one has cognisance, particularly if that document comes from a professional, scientific or technical body in which one has total confidence. I think it more important, where a document emerges from that sort of Providence, that it should be subject to the closest possible scrutiny. Therefore I do not, for once, agree in entirety with what the noble Lord, Lord Lloyd of Hampstead, has said on this particular subject.
There is one very important result—and I would here intrude a personal note—which has emerged from the creation of the Law Commission; that is, that it may have taken the heat out of law reform. It seems to me that the most disagreeable aspect of law reform is the suggestion that the legal profession is divided into reforming lawyers and lawyers who are reactionary or conservative. This I have never found to be the case. All lawyers have some bee in their bonnets about reform; they all have, if I may say so, a blind spot on some question where there is a determination that nothing shall be changed. I think it would be unfortunate if an impression became current that certain lawyers were preoccupied with law reform.
I said that I would intrude a personal note because some time ago I ventured—to my cost, I may say—to utter some words upon a subject in connection with law reform about which I feel vehemently. This was about the wearing of wigs and gowns. I do not think that this is a matter of tremendous importance. I do not think we shall have a more effective legal system if lawyers are stripped of their wigs and gowns: I do not think that the law system now operating is necessarily a bad one just because they are wearing wigs and gowns. But I hold the view that, in a modern society, this kind of pantomime, in which grown-up men walk about in period costume—rather tattered period costume—in the exercise of their ordinary everyday functions is not necessarily the best way to inspire confidence; not the best way to create the relationship which I think is now one which ought to be sought after, a relationship in which a lawyer does not seek to achieve some special status in relation to his clients. 1288 I do not think it is of tremendous importance; but you cannot imagine what a torrent I brought about my ears when I made this suggestion. I might indeed have suggested tearing the vestments from a religious order. This could not have effected a greater degree of rage, indignation and fury than was evoked by this simple suggestion.
§ LORD SOMERS
My Lords, the noble Lord will forgive my interrupting, but may I ask him whether he includes in those remarks the wearing of bearskins by the Guards?
§ LORD GOODMAN
My Lords, I am in trouble enough already, without uttering a single syllable on that topic. My point is not merely to engage in a piece of autobiography which can be of no interest to your Lordships, but to instance the point I want to make: that it is possible to hold a view on what I regard as a small aspect of law reform, just as I regard the reorganisation of the legal profession as a small aspect. I do not think it would be a fundamental change to alter the structure of a profession of something less than 20,000 people in this country; but once you get to the situation where some lawyers are urging reform, and some lawyers are resisting reform, you get entrenched in a position on both sides with the worst possible atmosphere for achieving change.
It is because we now have a body permanently established in a calm, objective, cool atmosphere to review all law reform, that I think this type of unfortunate consequence may be abrogated. That is, I believe, one of the most valuable consequences of having established a Law Commission, and I hope that the Law Commission will get around to these matters. I am unrepentant in believing that a high priority of law reform in this country is to make it possible for ordinary people to resort to the courts and to the use of lawyers, and not to contemplate ruin in connection with it. I do not wish to enlarge on this topic. It would be wrong to bring a discordant note into what I hope will be a happy afternoon when we shall be praising something that has been so handsomely established; but I am unrepentant in this belief.
I am gratified to see that the Law Commissioners themselves are to pay attention to it, because at the end of their 1289 document they make this significant remark:We have particularly taken to heart the layman's call for a review of English legal procedure and his lament over its cost and delays.If I may say so, if they keep that in their hearts and will bring that to their attention as soon as possible, they will be rendering a very real public service. I believe that a matter that bids fair to be splitting the profession wide open may be side-stepped by the use of this remarkable organisation which the noble and learned Lord the Lord Chancellor has seen fit to establish. This makes the Law Commission an organisation of very great and special importance.
I should like to make a few remarks about the Paper on divorce, but not to discuss it in substance, because I understand that it will be discussed next week. I know that certain anxieties have been expressed about the fact that the Law Commission should perform this function at all, and whether it was right for them to perform this function and to embark on what is, after all, an area of political and social controversy. I believe that there is much to be said for a viewpoint which regards activities of this kind by the Law Commission with great reserve. I think they could do themselves damage if they were to embark on this sort of field. However, if this document is studied, it will be found that nobody could have addressed himself to the problem with greater reserve, greater tact or greater delicacy, and, I think, with a greater recognition of the doubts that have been expressed by everybody.
The Commission have made no recommendations of any kind. They have illustrated what they regard to be the whole of the field. I do not think they have covered the whole field. It would have been a human impossibility to achieve that result. This is a matter on which other speakers will no doubt touch on in our debate next week, but I think the Commission have produced a useful handbook for people who wish to consider reforming the law of divorce, and it is in that light that a Paper of this kind prepared by the Law Commission should be regarded. In my view (I say this without the slightest disrespect to the Commission) it is right to be suspicious of any document which is produced as a guide to moral questions. 1290 Anyone who produces a handbook which seeks to indicate the range of choice on moral questions should be regarded with proper suspicion. No one, however, could have done it better than the Law Commission. I think their Report is a useful document, and I believe that the Commission can be left safely to do this again in the future. Nevertheless, as I say, we must be conscious of the dangers inherent in this type of activity; and they must be conscious of it as well. Just as with relaxing Parliamentary scrutiny, I think the production of this sort of document, if the Commission were not as good a body as they demonstrably are, could do considerable damage to them.
My Lords, the last point is this. We do not want to lose sight of the whole objective in our own legal delight at the fact that at long last lawyers are taking a long, cool look at law reform. We have all been tormented over the years by the 350,000 reported cases to which the noble Lord, Lord Lloyd of Hampstead, referred, and by all the extraordinarily difficult complexities of the English legal system. But we must not forget that there are features of this system which are unique in excellence.
We also must not forget the objective of the operation: to give people a better legal system. It is not to produce a choice between academic doctrines. As the noble and learned Lord, Lord Reid, said, it does not matter whether we have a doctrine of conciliation or whether we adopt the Roman doctrine of causa. No country becomes great or poor through having one or the other. These are delights to lawyers. On the question of lawyers' law, I am more in agreement with my noble friend Lord Lloyd of Hampstead than with the noble and learned Lord, Lord Reid. I do not think there is 90 per cent. agreement among lawyers on questions of lawyers' law. I believe that most questions of lawyers' law, if purely that, do not need to be altered; because in a great many cases it does not much matter which you opt for, provided that you have certainty. What is horrible is that in midstream, after the legal profession has been operating one rule for years and years, it should suddenly be changed because a band of gentlemen decide that it is preferable, on grounds of supposed logic, to operate another.
1291 I would urge upon the Law Commission, and I would urge it on them most strongly, that one of the greatest benefits they can confer upon the legal system is to review areas of law and decide that no law reform is necessary. This I think is a most important function for them to operate. I think they should have written on their walls a slogan such as, "In many cases it does not much matter", because so far as lawyers' law is concerned, and this I am convinced of, it does not much matter which rule you opt for, whether you have the doctrine of conciliation, the doctrine of causa, or what you have, whether third parties can or cannot assert rights under contract; either way you will have hard cases, either way you will have injustices. Undoubtedly the vital requirement is certainty, and that people should know where they stand, and that the law should not change overnight. For that reason I should like to see the Law Commission very shortly addressing themselves to the enormous question of precedent in English law. This I believe to be one of the matters which makes the conduct of English litigation more costly than it need be, more difficult, and requiring exceptional expertise in presenting cases. I have on many occasions indicated that I regard this as unnecessary. It is here that I think important changes should be made.
My Lords, I started by saying how welcome it was to have this Report and how glad we must all be that the Commission has totally vindicated the decision to establish it, how glad we must all be that it has allayed all doubts about that; and I hope we shall have the pleasure of discussing its Reports for many years to come.
§ 4.12 p.m.
§ LORD WILBERFORCE
My Lords, I join with other speakers in expressing gratitude to the noble Lord, Lord Lloyd of Hampstead, for opening this debate. I have a particular and personal reason for joining in those expressions of gratitude, because I have been able and privileged to take part with the Law Commission in some of their work; in their examination of some of the most important subjects which are referred to in this Report, in the fields particularly of personal injuries, damages for personal injuries, family law and statutory 1292 interpretation. I have had the privilege of seeing their working papers in those matters. I have had the privilege of seeing the way in which their minds work and of hearing them discuss those subjects in meetings with outside bodies. I have come away, as I am sure your Lordships would have come away, enormously impressed with the care and detail of their research work, with the width of their survey of contemporary law in this country, in the Commonwealth and in foreign countries, and with their willingness to consult other interests outside the strictly legal sphere—academic and social workers and practitioners and experts from other countries.
The noble Lord, Lord Lloyd of Hampstead, said that the Report made on him the impression of having been produced by very down-to-earth reformers. I would certainly agree with that, but I would add to it what I gleaned from seeing them in action and at work: that their work is also of an extremely high and far-ranging intellectual calibre. That enabled me to form one preliminary conclusion about which I should like to say something, and I do so by asking the question whether they are not in danger of taking too much on themselves and overstraining their resources. As has been pointed out, they have under consideration a number of major subjects—and I need not list them—as well as many minor subjects, and they have a very modest staff with which to do the work. It would probably be undesirable to increase it, because that would involve a loss of the intimacy and coherence which at present the Commission enjoy. I have no doubt at all that the Commission and their Chairman are fully aware of the risks of overloading themselves and of over-working their staff. At the same time, they are, very understandably, anxious to produce results during their terms of office, to keep up the momentum of law reform for which they have been set up and to keep the legislative pipe-line full. I wonder whether it would assist them to know that it is the feeling of this House—if it is the feeling of the House, and I hope it is—that your Lordships, so far from pressing them for results or being impatient for results, are confident that the work is going on well and that you would be 1293 quite happy if they were to moderate the pace from what is at present a very handsome hunting gallop.
That brings me to consider one or two items of the programme from that aspect of the matter. It seems to me in the first place that certain of the items look very formidable indeed for early results to be produced. I take, as an example of that, Item No. 9, which has the heading "Transfer of Land". Here one has a huge subject. During the debate on the Land Commission Bill the noble and learned Lord, the Lord Chancellor, described it as a tortuous subject, and no one would disagree with that description. It is not becoming less tortuous from the additions to it made by legislation such as the Land Commission Bill and by some Reports which have recently been made on particular aspects of the Land Law. I suggest that under this heading we ought to be satisfied with a gradual programme of work and with the gradual emergence from it of practical steps which would have as a result the simplifying of the transfer and sale of land as between ordinary people. That is a matter of great practical urgency. We should not be too pressing in expecting results along a wide front of law reform on this vast subject.
Apart from that, there are certain subjects in the programme on which the examination which has so far been made of them by the Commission causes one to doubt whether it is right to expect any results from the Law Commission at all; or, at least, results without some radical changes of assumptions. I should like to take two cases of that, one of a particular character and one, perhaps, of a rather more general nature. The particular case is one to which other speakers have referred, of the taxing Statutes to which the Commission refer in paragraph 122. There they say:Progress with the taxing Statutes has been disappointing.My Lords, I would agree entirely with my noble and learned friend Lord Reid that nobody could benefit more from any subject than those in your Lordships' House who are concerned with judicial business could benefit from a reform of the taxing Statutes, as any radical reform would completely transform the nature of our labours. But I feel this about it: that if a radical reform of our fiscal and 1294 taxing Statutes is feasible at all, it is a major job, a maximum job I would say, requiring almost a Commission in itself, and a Commission with very special expertise which I am not sure it is reasonable to expect should exist in a Commission of a general nature. The fact is that so long as our fiscal policy requires so elaborate a panoply of taxes as our masters seem to think good for us, there always will remain a basic intractability in this subject.
Of course, something can be done, perhaps in the way my noble and learned friend Lord Reid suggested, by the removal of trap sections or piecemeal alterations of that kind. But the job as a whole is an immense one and a long-term one, and I still retain doubts whether it is right to expect a major job from the Law Commission in its present form at all. Let us have one figure in mind. The United States revenue code, which is held up to us often as a model of intelligibility and which the citizen is supposed to be able to work for himself, contains no fewer than 8,000 sections, and if we are to have something of that scale I think we shall want more than five Commissioners and their present staff.
I come to the general question of legislation and statutory interpretation. I have always doubted whether statutory interpretation is a genuine subject for the Law Commission at all. I suspect it is what is nowadays popularly called a non-subject. I do not think that law reform can really grapple with it. It is a matter for educating the Judges and practitioners and hoping that the work is better done. As the Commission themselves say, in paragraph 111:The problem of the interpretation of Statutes is clearly connected with that of legislative drafting.And with that I entirely agree. I think that the problem really is one of legislative drafting rather than one of interpretation. The easy comment one might make on that—and we all agree that drafting is a vital subject in the whole of this mechanism—is, "Look at the Law Commission. They have draftsmen on their staff, but the draftsmen are Parliamentary draftsmen, taken out of the offices of Parliamentary counsel and the very men whose technique causes all the trouble we experience in the courts. Let us get some men less ingenious, some men 1295 of less intricate minds, some more plainspoken men, to show us how to do this legislative work in a different way." I feel that that would be a superficial approach to the problem, which in truth is rather more difficult, because the real trouble, as with the fiscal Statutes, is not in the drafting so much as in the nature of the legislation itself, having regard to the nature of the legislative programme of to-day.
It is in quantity far too voluminous. If we take the 1964 Statutes, there are 1,500 pages in the Statute Book, and for 1965 the number of pages was about the same, not including the Regulations in each case, and Heaven knows what the 1966 programme is going to be. It is not only much too large in quantity, but much too detailed in substance—the preoccupation with every minute case which has to be regulated and dealt with. Of course, the Law Commission could do something about this if they could show legislators how to achieve what Parliament wants by simpler means. They might even come forward at some stage with a translation in plain English of the Land Commission Bill. But as legislators, we have a responsibility in this matter, which one can perhaps define by saying that we should endeavour, so far as we can, to resist this process of detailed and excessive regimentation and try to press for a wider mesh in our legislation than we are getting. It is fairly obvious that the other place has not the time, or perhaps the will, to carry that out. Would it be too much perhaps to suggest that some lead might be given in that direction in this House?
Lastly, may I refer to one subject with which the noble and learned Lord the Lord Chancellor was kind enough to couple my name in his opening remarks—the field of company law. It is the fact that company law, and indeed economic law generally, is entirely lacking from the Law Commission's programme and from their work. I agree with the noble and learned Lord that it is a serious lacuna in the field which they are covering. That, of course, one knows is no fault of theirs. It is due to the division of responsibility which has been fixed on between the Law Commission, on the one hand, and the Government Departments, on the other. But I think still that it is a regrettable division. I 1296 should like to see a change, and I feel that the reform of the law in this very important field of legislation would be greatly helped if the Law Commission were to be admitted to it. That may involve a change in legislation or in organisation, but I should like to see it carried out. I feel that the Law Commission would be all the better for it. I join in thanking the noble Lord, Lord Lloyd of Hampstead, for initiating the debate.
§ 4.25 p.m.
§ LORD SILKIN
My Lords, it is the common practice in your Lordships' House to thank a noble Lord for having introduced a Motion. That is an ordinary courtesy, whether we mean it or not. It is not always the case that we also congratulate a noble Lord on the manner in which he has introduced his Motion. But every speaker this afternoon, without exception, has congratulated my noble friend on the way in which he has introduced this Motion, and I should like to join with them without any qualification whatever. I would associate myself with all the adjectives that have been used and to add one of my own. I found his address most stimulating, as has been evidenced by the comments which have been made by the speakers who have followed him.
The Report we are considering this afternoon shows an amazing amount of work done, both in its extent and in its depth, by a relatively small number of Law Commissioners. The noble and learned Lord, Lord Reid, was quite right in doubting whether this small body could ever achieve the programme they had set themselves out to do in their first year. If I may humbly say so, I was very doubtful myself whether they could do anything of the kind, and so with all sincerity I congratulate Mr. Justice Scarman, the Chairman, and his members, on the remarkable promise and success which they have shown in their first year; and I should like to include with them all those who have been associated with them, the officers and others who have been of help.
This first programme has now been well and truly tackled. They have actually published two Reports, one an interim landlord and tenant Report on distress for land, and the other on divorce, which we shall be discussing next week. I feel that 1297 this Commission is not just one more body set up to consider changes in the law. They have a special task of their own, and are not a duplication of those Law Commissions who already exist.
I should like to make a few comments on some of the matters contained in their Report. In paragraph 3 of their note to their First Programme, they say:It is desirable that the law should be simpler, more readily accessible, more easily understandable and more certain than it is to-day.This is a remark which I may live to regret, but I find that some of these aims are irreconcilable. I believe that the more simple we try to make legislation the less certain it is likely to be. We can simplify legislation, in the way in which the Commission have set out to do it, by having much more generalisation and not dealing with specific cases, but to my mind this is bound to lead to more uncertainty, and therefore to more litigation. But I think that this is a fair objective and if they go down on it, nevertheless it will have been a cause well worth fighting for.
The methods they propose for doing this are consolidation and codification. These will certainly make for simplification and, above all, for accessibility. I would ask any practitioner who has to look up certain Acts of Parliament without exactly knowing where they are to go through the Annual Statutes and try to find them. I will mention one particular case. I had great trouble, when I was trying to understand the Land Commission Bill, in finding a particular Statute which is there referred to. It is referred to by name, but I could not find the year in which it was passed. Therefore, I had to go through a number of volumes of the Annual Statutes to discover the particular Statute I wanted. I think that codification and consolidation would very much help the general practitioner in trying to find any particular law that he needs.
I hope that the broadest possible view will be taken of consultation, and that any amendment of the existing Statutes requiring simplification and modernisation will be made. Obviously this has not yet been reflected in current Bills. There was some criticism by my noble friend of the fact that the Law Commission had not got down to the Land Commission 1298 Bill and the Companies Bill. Of course they have not. If they had, we should not have anything more than merely their views on those particular measures. In my view, they were right to confine themselves to their programme, and not to be deflected from it.
I was interested, also, in item 17 of their First Report, paragraphs 107 to 112—namely, investigation as to how far, and in what circumstances, they should look beyond the precise letter to the spirit of the Statute Law, and in particular to go behind the literal meaning of the intention of legislators. The noble and learned Lord, Lord Reid, dealt with that point, I thought, fairly effectively. Do you, in fact, try to fathom the minds of those who were responsible for passing the legislation? The only way in which you can do that is to study Hansard. Whose speeches do you read to discover the spirit of the legislation? Presumably, in a contentious Bill, you would ignore the Opposition altogether and merely read the speeches of the Government. And which particular Members of the Government can you rely on to give you the spirit of the legislation?
But are we not, in fact, changing the spirit of our legislation all the time? In the days when I was practising hard at the law the Workmen's Compensation Act was a very popular Act, and I well remember studying cases. I was astonished to find the change in the spirit and interpretation of that Act, and to see how judges themselves had modernised the Act without actually changing it. For instance, I am sure the noble and learned Lord, Lord Reid, will remember the words accidents "arising out of and in the course of one's employment". In the early days of the Act those words were interpreted in one way. Gradually, however, the interpretation was made more and more liberal; and more and more accidents were brought within the scope of the Workmen's Compensation Act. That was done without trying to interpret the spirit in which the Act was passed. Indeed, if one had tried to deal with the Act in the spirit in which it was introduced, one might have had a very reactionary interpretation.
§ LORD CONESFORD
My Lords, I am speaking only from memory of practising in this matter, but surely the 1299 development to which the noble Lord refers has occurred almost entirely as a result of decisions by this House sitting in its Judicial capacity. It was thus that this wider interpretation of the words which the noble Lord has cited came about.
§ LORD SILKIN
I thought that was what I was trying to say: that it is the Judicial Members of this House who have interpreted the law in accordance with the spirit of the times. I wonder whether anything more than that is really practicable. However, I should like to welcome the initiative of the Law Commission in trying to see what they can do. I am merely uttering a caveat against expecting too much.
I am particularly interested in the grouping of a number of Statutes dealing with related subjects, such as family law, which comprises a great variety of matters. Again I wonder whether this is too ambitious a thing to expect, and whether it is practicable to have what is called "family law" incorporated in one Statute. I do not know. The noble and learned Lord, Lord Wilberforce, referred to a Statute with some thousands of clauses. I imagine that any Act which tried to deal with all these matters—family inheritance and property law, and the vitally important questions of rights of matrimonial homes, and so on—as part of the grouping of a number of Statutes, would be of similar size.
Another task which the Commission have undertaken is an indication of their forward-looking approach. I refer to their full and harmonious co-operation with the Scottish Law Commission, with a view to as close a harmonisation of the two systems as possible. I do not see many Scotsmen in the House, but I would express the hope that the time will come when there will not be two separate systems of law. I cannot see, in the conditions of Scotland, any real justification for a separate law there, any more than it would be justified for Wales. It is historical tradition. As I say, I hope that the time will come when it will be possible to harmonise the two systems—and not in one direction only: we may have something to learn from Scottish law, and they may have some- 1300 thing to learn from ours. I cannot feel that there can be justification for having for ever two separate systems of law.
The other task which the Commission have put before themselves is to look ahead to the time when we may possibly be joining the European Economic Community, and to study the Continental law, so that if we do join the Community, we can endeavour to work towards a harmonisation of European law with our own. That is most enterprising, and it is certainly a task which is well worth doing, although I wonder whether it needs so high a priority as the Commission seem to be giving to it. I should have thought that, while the point is one that is worth having in mind, it could wait a little until they are more certain than we are to-day that this country will be able to enter the Community.
A number of noble Lords referred to the possibility of adding lay members to the Commission, and my noble friend referred to a woman member. I agree with my noble friend Lord Goodman that a woman could be very useful, but I do not think she should be added purely by reason of her sex; she should join entirely on merits. But with a Commission of this kind I am doubtful of the value of lay members at all.
§ LORD SILKIN
It is a highly specialised body which is carrying out a most specialised task and it is quite possible that lay members could be a hindrance. After all, the members of the Commission have every opportunity of consulting anybody they like, and if they like to consult lay people that is all right, but to have lay members working in the same capacity as the highly specialised, highly skilled members of the Commission, who have been so greatly praised by my noble friend Lord Lloyd of Hampstead, seems to me an extraordinary suggestion to make and I think we should be extremely careful about bringing in people who are not really equipped to do the kind of work which this Commission are doing.
My Lords, I should like once more to congratulate all concerned on the brilliant start they have made and on their public-spirited efforts in their first year. It is impossible to exaggerate the value of this work to the community. We shall watch 1301 with tremendous interest and a high degree of expectation their future work along all the lines which have had so promising a beginning.
§ 4.42 p.m.
§ LORD AIREDALE
My Lords, I desire to say only a few words about one topic raised in this Report, Item 13:Imputed criminal intent—the Director of Public Prosecutions v. Smith".I was delighted to read in the last sentence of the Report on this topic that the Commission have prepared a Report which they are about to submit to the noble and learned Lord the Lord Chancellor, together with a draft Bill, and all I wish to do is to cite a few words from a very authoritative source which I think perhaps illustrate the great importance of our giving Parliamentary time to considering this draft Bill prepared by the Commission when it comes before us.
In 1963 a case was decided in the High Court of Australia, The Queen v. Parker, in which the Chief Justice of Australia, in the course of his judgment, said this:In Stapleton v. The Queen … we said: 'The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous'. That was some years before the decision in Director of Public Prosecutions v. Smith …,which seems only too unfortunately to confirm the observation. I say 'too unfortunately' for I think it forces a critical situation in our relation to the judicial authority as precedents of decisions in England. Hitherto I have thought that we ought to follow decisions of the House of Lords at the expense of our own opinions and cases decided here, but having carefully studied Smith's case I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept. I shall not discuss the case. There has been enough discussion and perhaps I may add explanation to make it unnecessary to go over the ground once more.Then leaving out one sentence the Chief Justice continues:I wish there to be no misunderstanding on the subject. I shall not depart from the law on the matter, as we had long since laid it down in this Court, and I think Smith's case should not be used as authority in Australia at all.I am authorised by all the other members of the High Court to say that they share the views expressed in the foregoing paragraph".I am thankful that the noble and learned Viscount who delivered the 1302 judgment of this House in Smith's case was not here to hear me read out the opinion of that case held by the Chief Justice of Australia; but, my Lords, I think that we owe it to the united High Court Bench in Australia to give Parliamentary time to discuss the draft Bill when it comes before us.
§ 4.46 p.m.
§ BARONESS SUMMERSKILL
My Lords, as one of the first beneficiaries of the work of the Law Commission, I feel I should like to thank them once more for the help they afforded me in the drafting of the Matrimonial Homes Bill, and subsequently when I was assaulted from the Benches on which the Judges sit during the Committee stage, and indeed I should like to thank them for giving priority to the examination of measures concerned with that important institution of marriage. I think it was the noble Lord, Lord Goodman, who said that he could not see any difference between a woman's attitude and a man's attitude to some of these matters with which the Law Commission would deal. I must confess that when I think of marriage I think perhaps a woman's view of the ideal marriage and that of a man do differ. However, I will not be diverted because we are going to discuss this matter more fully next Wednesday.
On this First Report there is one aspect I should like to comment on as a politician, and that is the expedition. I am sure no one fails to observe that the Royal Assent was given to the Law Commission Act on June 15, 1965; the noble and learned Lord the Lord Chancellor appointed the members of the Commission on June 16, 1965, and the first programme of the Commission, which was for the examination of seventeen subjects with a view to reform, was submitted on July 19, 1965. Such expedition in the field of Parliamentary work is, I think, unprecedented, and I believe we owe this to my noble and learned friend who sits on the Woolsack, who must be a very proud man to-day to hear himself referred to as "the father of the Commission".
Another matter I want to comment about is that the Report is concise and informative. How welcome that is! There are no superfluous words, and so much information has been conveyed in so 1303 few pages that I should like to say to the Commission—because there is somebody behind the scenes who keeps an eye on this when drafting the Bill—that this is truly a blessing to a Parliamentarian, and we only hope that all their reports will be as short, as concise and as informative. Furthermore, I think it promises well to find that there are knowledgeable men and women in the administration who are well endowed with common sense. In approaching the reform of the law, if a man or woman is not endowed with common sense then I begin to lose faith in their ultimate decisions.
What I have to say this afternoon is on family law. I believe that family law reform has been delayed because successive Governments have deemed that it was inexpedient to tackle it. A Minister is prepared to stand at the Box and expound a matter concerning, perhaps, some international event, but he is afraid to discuss family relationships or any reform of the law associated with family relationships. Therefore I would say to the Law Commission that they must be prepared to grasp some nettles which have been neglected for far too long. Unfortunately the anomalies and the injustices in our family law which lead to marital disharmony, and ultimately to separation and divorce, as I said, have been deliberately evaded hitherto.
It would rather appear to me—again I say it in advance of next Wednesday—that we are putting the cart before the horse. Surely it would have been wiser, more humane and less expensive to the nation to promote legislation designed to modify certain marital customs which tend to promote discord in the home, rather than devote Parliamentary time and energy to the divorce law. I am sorry that the most reverend Primate is not present and that the Bishops' Benches are empty, because I would say, with all due respect to the Church, they might have proved more worthy of their historic function if they had devoted more attention to legislation calculated to mend marriage rather than preoccupying themselves for such a long time with divorce.
In my opinion, the modernisation of marriage should be given priority over all family law reform. The contribution which women give to the home in terms of services and through the home to society 1304 cannot be overestimated, and yet they are denied all property rights in the home. I would remind the Law Commission that in tackling this problem they will have the most powerful support. A United Nations commission on the status of women made a recommendation, which has been adopted by the Economic and Social Council, which includes the provision of statutory matrimonial regimes affording women equal rights with respect to separate or common property during marriage. Although the Law Commission tell us that they have not issued any formal invitation to either the legal profession or the public at large to submit proposals for their consideration, nevertheless they have received 83 on family law. Just think of that: the Law Commission have not invited proposals on the subject and yet they have received 83 from organisations; and it would appear to me that some of the organisations which gave evidence before the Royal Commission on Marriage and Divorce, which sat from 1951 to 1953, are displaying some impatience.
The Royal Commission held 102 meetings in London and Edinburgh and heard evidence from 67 organisations and 48 individual witnesses. I would draw the attention of the Commission to the evidence given by certain of those organisations concerning the property rights of husband and wife. It would be a pity, of course, to waste money, time, effort and brains, to duplicating all this work; already a great deal of evidence has been given by these organisations, and many of them have again written to the Law Commission. Also, I should like to bring to their notice the repeated assertions of marriage counsellors that the initial trouble in a broken marriage often stems from some trivial quarrel over money. It was for this reason that I welcomed the Commission's statement that the first work undertaken was related to the spouses' rights in the matrimonial home and its contents. That is all I have to say, if I may dare to prod the Commission, so far as their work is concerned during the ensuing year.
The other point I want to make is with regard to our legislative procedure. I like the Commission's description of itself as the latest recruit to thedetermined but indeterminate band of cooks stirring the legislative broth".1305 These cooks, having prepared and worked on the recipe, should be told how the broth is to be served with the certainty of its reaching the consumer in the shortest possible time. In other words, how is the drafted legislation to reach the Statute Book without delay? With the able help of noble Lords on both sides of the House, I successfully piloted the Married Women's Property Bill 1964 through this House. But it nearly came to grief in another place before reaching the Statute Book; it was only because Sir Harry Hylton-Foster was Speaker at that time and made a protest in regard to the procedure there that I believe it ever reached the Statute Book. Again, the Matrimonial Homes Bill, with the invaluable help of my noble friend the Lord Chancellor and other noble Lords, has passed through this House, and it now faces the not inconsiderable Parliamentary hazards of another place.
May I illustrate what happens in another place by briefly describing the events associated with the Married Women's Legal Disabilities Bill 1954,—disabilities, I may say, which I am sure the Law Commission hope to remove—which I sought to pilot through another place? Then I had the powerful support of the Attorney General, Sir Lionel Heald, and the magnificent co-operation of Sir Jocelyn Simon, now the President of the Divorce and Admiralty Division. But, although I had the Law Lords on my side, although I had the support of men as kindly as men who have supported me here, what happened? It needed only one disgruntled individual to sit on the Bench on a Friday afternoon and shout "Object". Despite the fact that on the Friday afternoon the Attorney General and Sir Jocelyn were there canvassing, recruiting on my behalf, it made no difference; one disgruntled individual sat and shouted "Object". I was told afterwards—I do not tell this as a joke; I was told it was serious, because everybody was so disappointed—that that particular individual had been rejected by his fiancée a fortnight before.
§ LORD CONESFORD
My Lords, I would suggest to the noble Baroness, or possibly to the Leader of the House that it may not be very desirable that we should discuss the procedure of another place. I am not saying anything what- 1306 ever about the merits of what the noble Baroness is saying. I am simply suggesting that, if either House criticises the procedure of the other place, it might lead to rather unfortunate results.
§ BARONESS SUMMERSKILL
I am absolutely astonished at the noble Lord's intervention. What I am explaining to the House is this. We have already this afternoon talked about the importance of draftsmen. The draftsman, or drafts-woman, as I had, having prepared a Bill, has something of a right to know how it will proceed through both Houses. The noble Lord, Lord Devlin, has already said that this House should initiate reform. Surely it would be the most curious thing if we discussed reform here and how we should initiate it, and failed to talk about how the Bills we pass here will be passed in another place in order to get on the Statute Book. I am now saying that the Law Commission should know how these Bills will proceed, and I am illustrating to noble Lords who do not know the procedure in detail of another place how it is possible for us to devote our time here, our energies and the time of the Law Commission, and then find when the Bill gets to another place it ends, and why it ends and how it ends; and I have just illustrated that case now. I say this is a most undesirable method of conducting Parliamentary business.
This subject has gained the support of the Law Officers and is of universal interest. I agree that if somebody has a very tiny bee buzzing in his head which is of concern only to a tiny minority, it may be said that the House will say, "We cannot give our time and energy to that". But I am talking particularly of divorce reform, which I understand is now going to be conducted through Parliament, possibly by one individual. I am saying that these matters of universal interest should be considered by both Houses of Parliament as their responsibility. We have arrived at a phase in our Parliamentary history when the Lords can pass progressive legislation which may be vetoed by some "backwoodsman" in the Commons. I think it is only fair to the Law Commission for them to know in these early days that the Government will shoulder the responsibility for translating their efforts into legislation.
§ 5.1 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
My Lords, I greatly welcome this debate as affording an opportunity which, in common with other noble Lords, I am most happy to take, of expressing unqualified appreciation of the work that is being undertaken by the Law Commission. I think that the work that is being done by Mr. Justice Scarman and his colleagues, work to which they are devoting their knowledge, their skill and their enthusiasm, is work that is so well worth doing and work that is so much in need of doing.
All of us who have been engaged upon judicial work have had experience from time to time of meeting points in the law which have caused us some disquiet, and points which we have felt to be unsatisfactory. Often attention would be directed to them in a judgment delivered. I think most Governments in the past have done their best to consider any matters of great importance, or matters affecting a wide section of the community. But it has not always been possible to deal with matters that affect a small number of people; and I am so happy to think that now, if attention can be focused on any feature of the law which seems to be in need of improvement, there is this machinery whereby the matter can be brought to the notice of the Law Commission, or will be seen by the Law Commission, as a result of which full attention can be given to the matter.
Not only do I feel happy that the Law Commission are in existence, and not only do I think that their first Report is a wholly admirable document, but I would respectfully also commend the way in which, as they describe, they have approached some of their problems. I quote from the beginning of paragraph 137, where they say:But research and consultation are not to be limited to contact with lawyers. If law reform is to be more than an academic exercise, if the Commission's proposals are to be relevant to the needs of the community, research has to range more widely than over the professional field alone and must probe deep. Consultation must develop not only with lawyers but with laymen; increasing use must be made of the processes of investigation being evolved by the social sciences and by commerce.I often feel that there is something amiss if members of the public refer to the 1308 law as being something of a mystery; if they refer to the principles of the law as being those that can be appreciated only by those who are engaged in the legal profession. I think there is something wrong if that is the general feeling. The law should be an instrument incorporating the rules whereby men and women regulate their affairs in the community, and they should be rules which the public feel to be sensible, intelligible, reasonable and fair. That is why I think it is so important that there should be this approach as indicated in the Commission's Report.
Of course, much of the law has to be complicated when it refers to complicated transactions. The transactions of commerce, industry, banking, insurance and of company law must be complicated, and one cannot expect the law relating to those dealings to be so drafted that "he who runs may read". But in other spheres, spheres that affect all people, I think it is important that the principles should be recognised as being reasonable and fair. All members of the community are interested in the law relating to the family, the law relating to the home or the house, the law relating to their work, and in the law relating to security generally. Every principle that is followed by the courts in regard to those matters should, I think, be capable of simple and easy statement; and of statement that is known to be fair and seen to be fair and reasonable and necessary by members of the public.
I do not at this stage of the debate propose to say more than a few sentences further. One matter affecting members of the public in regard to security arises if there is some sort of accident or calamity in the streets or in the factory, and one sees that the Commission are to consider all the topics that arise in connection with the assessment of damages. I know that for some time there has been consideration as to whether in some cases, instead of awarding lump sums by way of damages, it would be more in the interests of all concerned if there were an order whereby an annual sum could be paid over a period.
Of course that is a problem which raises a great many difficulties. If you are to have a sum paid by the year, and if that is to he reviewed in the future, is it to be reviewed in an upward direction 1309 or only in a downward direction? If there is a change in the value of money, is it to be changed so that it is a higher amount in future? Could insurance companies be content with any system whereby they do not know exactly where they stand? It may be that all these matters are within the terms of reference of the Committee that the noble and learned Lord on the Woolsack has appointed under the Chairmanship of Lord Justice Winn. Whether they are or not, they will be considered by the Law Commission. I think these are all matters that merit consideration.
There is one other matter that I would mention. I was glad to see in the Report that it is thought it may be appropriate to include in Miscellaneous Provisions Bills a number of individual matters which can readily and simply be dealt with. If that procedure were possible there ought not to be great difficulty in finding Parliamentary time here and elsewhere. In this connection I should like to join with the noble and learned Lord, Lord Reid, whose guidance all of his colleagues are so proud to have available, in expressing the importance of having more skilled draftsmen trained. The Law Commission are undertaking the work of consolidation and the work of Statute Law revision. I do not regard that work as being strictly law reform. Consolidation does not change the law; Statute Law revision does not change the law. It merely removes from the Statute Book Acts which no longer have application. They are tidying up processes. They are very valuable, they must be done, and all those who are engaged in the law are profoundly grateful when the work is done.
I have had some small experience which has enabled me to meet Parliamentary draftsmen, and my admiration for their skill is very high indeed; but I agree with the noble and learned Lord, Lord Reid, that there would be great advantage in having more skilled draftsmen. At this stage of the debate I will not go into further matters, but I am glad to have this opportunity of commending wholeheartedly the work which is being done.
§ 5.12 p.m.
§ LORD DENNING
My Lords, I, too, welcome all the work which the Law Commission have done and are doing. Indeed, such remarks as I shall make will 1310 be only to wonder whether there are a few matters that might perhaps receive more urgent attention. In the last few words of the Report, the Commission say:We must build brick by brick; but each brick must fit into a coherent structure.In our structure of the law the roof leaks in many places; the windows have been smashed here and there, and we need the repair gang in urgently at many points. My noble friend Lord Airedale has pointed out the difference between the High Court of Australia and the House of Lords here as to intent in murder. Is it to be the intent of the man himself to kill or to do grievous bodily harm? That, I think, is the right rule; but if there is any doubt about it I hope the Law Commission's Report which is shortly to appear will resolve it.
Then let us take the case which has come up within the last few months, a case which came to the House of Lords involving a sleeping beauty—a girl who was knocked unconscious and who, owing to the administration of modern drugs, can live for two or three years, completely unconscious. How much damages is she to receive, feeling nothing and dying eventually after a few years? This is a great problem for lawyers. A majority in the House of Lords held that the sum should be £18,000. When the young lady dies, the money will go to her relatives. The High Court of Australia said that that was not the right basis, and that the sum ought to be only £500 or £1,000, the cost of the extra nursing which was necessary. There again is a gap, a divergence between the common lawyers of England and those of Australia. What a position to be remedied and reported on by the Law Commission! Indeed, how grateful I was to the Lord Chancellor earlier this year, when we in the Court of Appeal had put in some windows in the house as best we could in trying to protect a deserted wife in her home. The House of Lords said that we had put them in all wrong, but I am glad to say that the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Summer skill, said, "Let us try to get the windows put in right". The Law Commission were of great help in drafting that remedy Bill.
Then there are all the exception clauses which are to be found in contracts. Companies have their printed forms, and their 1311 attitude is: no matter how negligent we have been or how wrong we have been, you shall not recover any damages. In the Court of Appeal we had got round this matter by a doctrine in which we say that if the person breaks his contract, going to the root of it, he cannot rely on those exceptions. The House of Lords, judicially, have said that we have put that window in wrong. I hope that the Law Commission will soon tell us how the window is to be replaced, urgently.
These, then, are some of the repair jobs which the Law Commission will do no doubt very well, but I would stress perhaps more than anything topics which hardly form a place in their work. I refer to the procedure of our courts, particularly in regard to infant children. At the moment they are dealt with in several divisions of the courts and in different ways. The magistrates courts may deal with adoption and custody; then there are the Divorce Courts, with their powers in these matters; and there are the wards of Court in Chancery. Different divisions deal with them in different ways.
May I echo perhaps criticisms which have been made of our procedure? In one division it is all done, or nearly all done, on affidavits. The father and the mother have their affidavits drafted by solicitors, and they are then read out to the court, and perhaps they may be cross-examined on the affidavits afterwards. But it takes weeks or months for all this to happen. I have always thought that these cases ought to be dealt with by the parties themselves; the father and the mother and other people going to the court, and the judge hearing them and deciding upon the case as quickly as possible. If there is delay, a year or two may make all the difference in regard to the rightness of an adoption of the rightness of a particular custody. When a child has been in custody for a year with one person, it must not be taken away. If the case had come on quickly, the situation might have been different. These matters of procedure are vitally important. It is here that the water leaks through the roof in the structure of the law. How good it would be if we could do something about these matters!
Then there is our whole machinery for the assessment of damages. I echo 1312 wholeheartedly what was said by my noble and learned friend Lord Borth-y-Gest. How much better it would be if, instead of awarding a great lump sum of £20,000, £25,000 or £30,000 to a person who may live for only a year or two with the rest going to relatives, we could award a substantial payment, month by month, or year by year, to deal with the situation! But we have no power.
On the whole question of liability for accidents, ought there not to be strict liability in our highways? A man may be killed. If his widow makes a claim she has to prove negligence, and she may have no witnesses. A man may be rendered unconscious; may be unable to remember anything. He has to prove negligence, but cannot do so because he has no evidence. A great question arises in law reform as to whether in such cases there ought not to be strict liability. That is all under consideration here. I know what a big task it is, but let us get on with filling these great gaps in the law.
There is one further, perhaps rather technical, matter I wish to mention. At the end of their Report the Commission say:A start has not yet been made with estate duty or the Stamp Acts … It is with regret we have to report in these terms.Many of these cases come before the Court of Appeal, and I think I can say that the Statutes relating to estate duty and the interpretation of the courts upon them are a disgrace to the whole of our legal system. The way in which people can, by technical arguments and devices, get out of duty or, the other way about, be held by it, is incomprehensible almost to anybody. Your Lordships know how, only a year or two ago, it used to be thought that if you were making a settlement you should make it for five years, and you would have to live for five years afterwards in order to escape the duty. A number of ingenious lawyers found that by signing the appropriate document, even within a week or ten days of an old lady's death, you could find your way through all the estate duty provisions; and of course the Legislature has had to intervene. But the whole of the estate duty and stamp duty provisions are riddled with technicalities. I should like to see not only a start made 1313 on consolidation, but a real reform of that most important branch of the law.
Those are only suggestions. We cannot expect everything at once from the Law Commission. There is not much to be seen of actual new Bills during this first year, but the groundwork has been prepared, the foundations, I am sure, are being well laid, and whilst making these few suggestions I want to thank the Commission for the very important and great work which they have done.
§ 5.21 p.m.
§ LORD CHORLEY
My Lords, to me, at any rate, this debate has been a memorable one, if only for the phrase which fell from my noble friend Lady Summer skill when she referred to some backwoodsman in the House of Commons. I am glad to have lived on the day when that phrase was being used in your Lordships' House, because so often have I heard Members of that other place referring to another sort of backwoodsmen. The debate has also been interesting in the fact that it very closely bears out what I think my noble friend Lord Lloyd of Hampstead said; that it is really only lawyers who are interested in law reform, and most of the law reform is clone through the advocacy of the legal profession. To-day we have about a dozen or so speakers, and if one adds them up one finds that, with the exception of the noble Lady and the most reverend Primate, who had a rather special point of interest to the Church, this debate has been entirely conducted by the lawyers. It is a great pity that the laymen have not taken more interest in it. They seem outside to be taking a good deal of interest in the work of the Law Commission.
My noble friend Lord Silk in mentioned the sort of formal congratulations which we put at the beginning of our speeches. I have on my notes: "Congratulations". I was able to anticipate congratulating my noble friend Lord Lloyd of Hampstead, because he is a very old friend and colleague of mine, and I have never heard him make a speech which was not full of meat. I had no doubt that I should be able to congratulate him and that was borne out by his speech. It was also obvious, because I had read the Report of the Law Commission, that I would be congratulating them, and therefore I 1314 have no difficulty in carrying out that part of my notes as well.
The Report has been described by a well-known member of the Bar as a "fairly staggering one, with its revelation of the amount of work that the Commissioners have already got through, are currently getting through, and promise to get through in the future." I think that is a very accurate description of the situation. They themselves claim with a certain amount of pride, which I am sure we should all think is quite justifiable, that they have got into their stride, and this Report shows very clearly that they have got into their stride with that formidable programme which has been referred to by more than one speaker this afternoon.
Then, we are certainly entitled to congratulate the noble and learned Lord on the Woolsack, and I was very glad to hear a number of noble Lords congratulate him. He must be very proud of his paternity of this quite remarkable virile offspring, the Law Commission. Therefore, all the congratulations which I put in my notes before I heard the debate have been justified by the events.
I do not want to discuss the programme in detail. As the noble and learned Lord, Lord Denning, has just said, we could not expect a very great deal to have been carried through during the first year. What the Report does is to show what tremendous progress has been made. I should like to start by referring to the debate on the programme, which we had a year or so ago. On that occasion, rather suspecting that I was teaching my grandmother to suck eggs, I pointed out that there seemed to be a certain lack of liaison between the English Commission and the Scottish Commission. This Report shows that my suspicion was quite right, because it is clear from this Report that the very closest co-operation is going on, and had already been started. But I do not altogether regret having made that remark, because, after all, communication is really very important in modern life and people outside can only know what is going on by reading the Reports and programmes of the Law Commission.
This matter of co-operation was hardly made as clear as it might have been in the programme, but I am very glad, indeed, to see that it is now very well 1315 looked after. It is referred to at the beginning of the Report, on page 4, where it is said that joint meetings have been held both in Edinburgh and in London, and they will be a regular feature of the Commissions' joint work. This is particularly important, as was pointed out by my noble friend Lord Silk in, in connection with the work on the codification of the law of contract. I do not go so far as he does, in thinking that we ought to have a completely uniform law between this country and Scotland. But businessmen and others are continually making contracts between the two countries, and the differences there are very objectionable. In regard to land law and such matters, I do not think the difference matters so much. So it is particularly gratifying that the work on the codification of the law of contract, which is of the greatest importance, should be going on with such very close consultation between the two bodies.
I am also very happy to notice that a good deal of attention is being paid to comparative material. This is referred to on page 7 at paragraph 33 of the Report. It is astonishing how often in practice international trade is interfered with by what one can only describe as tuppenny-ha'penny differences between our law of contract and the law of contract on the Continent. The rather unscrupulous type of businessman is very ready to take advantage of small differences of this kind in the law. I cannot see that in the great majority of cases it is any advantage at all to have these differences, and I am sure they could be ironed out.
I am glad to see that the Commission take the view, which was argued for by some of us during the debates on the setting up of the Commission, that the codification of the law does not debar one from improving it as one goes along; and I am quite sure that, as they proceed to codify the law of contract, the Law Commission can in fact remove very many blemishes. If they pay attention not only to the law of Scotland but to Continental law as well, in quite a number of cases they may succeed in producing a uniform law which will be of the greatest advantage to us. I do not think we have to wait until we are in the Common Market to find this. 1316 Anyone who has practised in the commercial court and seen a great deal of the litigation going on between English and Continental firms is bound to agree that more uniformity between our law of contract and theirs would be of the greatest help. So this part of it, I think, is of great interest and of great importance.
I should also like to say something about another matter which has been touched on by the noble Lord, Lord Lloyd of Hampstead, but before I deal with that I should like to add a word to what was said by the noble and learned Lord, Lord Wilberforce, who had the advantage of seeing the Commission at work from within, so to speak. This is referred to on page 6 under the heading, "Internal Working Procedures". I think that the description of their internal working procedures which is given there is of very great importance, because anybody reading it would realise how very intimately the Commissioners are working together; how closely they are connecting themselves, not only with the legal profession as a whole but with other interested parties outside; how they are taking advantage of the visits of foreign and Commonwealth judges and lawyers to bring them in and get their assistance; and, indeed, how those of us who have been interested over the years in the problem of law reform have been invited to come in and see them at work. That, I am sure, very much increases one's confidence and makes one quite convinced that the system of working which they have adopted is calculated to produce, in the long run, the ends for which we are all looking so much.
Then there are the law reform proposals. I was glad that the noble Lord, Lord Lloyd of Hampstead, underlined this. It is really a remarkable thing. It is not only that they have not invited suggestions from the women's organisations or suggestions about the improvement of domestic law: they say they have not issued any formal invitations to the public at large to send in proposals. Yet they have had this very large number of proposals, and the really interesting thing about it is that very few of them are wildcat proposals. No more than 5 per cent. are not viable, so to speak, and not even the whole of that 5 per cent. are not viable 1317 because they are wildcat proposals. I think that that paragraph is one of very great interest, and is really a remarkable compliment to the people of this country, showing that they are taking this business seriously. It shows how very few people there are about who have bees in their bonnets; otherwise, they would have been fluttering around in Theobald's Road very energetically.
It is interesting to look at the sources from which these proposals come which are given on the very last page of the Report. Here I must say I was a little disappointed to find that so few suggestions had been put forward by the Judges, and particularly by the High Court Judges. I think there are only six proposals—one of the smallest numbers. I remember from reading the report of the New York Law Commission how they emphasised that whenever a judge dealing with a case came across some instance in which he thought the law ought to be reformed, he sent it in to the New York Law Commission. I find it very difficult to believe that in the last year there have not been more than six cases in the High Court in which the Judge has felt that the law needed reform, and this seems to me rather disappointing.
A colleague of mine in the University of London has drawn my attention to Section 210 of the Supreme Court of Judicature (Consolidation) Act 1925, which lays it down as a matter of law that a Council of the Judges of the Supreme Court has to be held at least once in every year, their job really being more to look at the system of procedure and the administration of the law in the High Court with a view to improvement. They are not told specifically to look at the substantive law, but it has been emphasised by more than one speaker this afternoon that the procedural aspects of the law are of very great importance, and it makes one wonder whether this Council of the Judges is in fact being held as regularly as the Act of Parliament requires that it should be. I see from the end of that section that the noble and learned Lord the Lord Chancellor can himself refer matters of a more general character to this council, so it would not appear that they are in fact limited to considering questions of procedure and the administration of justice in the High Court. I think it is a little disappointing that the Judiciary 1318 have not been taking rather more interest in this. Perhaps they have been taking more than I know about, and I may again be teaching my grandmother. I hope that is so, and that we shall be able to hear about it from the noble and learned Lord when he replies.
The last matter to which I should like to refer is again one that has been referred to more than once this afternoon, and it concerns the future of law reform. In fact, in spite of the tremendous programme the Commission have they emphasise—and I think very properly emphasise—that haste is the enemy of sound law reform: more haste, less speed ! I think this is one of the disadvantages of the sort of method to which (although I admire his work in the Court of Appeal) the noble and learned Lord, Lord Denning, Master of the Rolls, was referring when he spoke about stopping up the leaks in the roof and repairing the windows. I am not sure that that metaphor is an altogether satisfactory one.
One has to remember that when a reforming Court of Appeal or a reforming House of Lords changes a case which has held the field for very many years it is like throwing a stone into a pond—the ripples spread out a long way. It may well be that the justice of a case before the court, as between the parties, gives one an urge to say that one of the rules about consideration is perhaps not operating very justly, and that it must be changed so that it will operate justly. But it may be found that that is throwing a stone into the pond: and before you know where you are, some documentary credit issued by a banker in connection with an overseas trading contract is being affected by what you are doing.
Matters of this sort cannot, of course, be argued out by the counsel who are dealing with the case in the Court of Appeal, and it is very difficult for the Judges in the Court of Appeal or the House of Lords to know exactly how far the change in the law which they are effecting is going to change situation in far-distant territories of the law. That is why it seems to me to be so important that, in the Commission's Report, the emphasis is all the time put on research. They say that before a start is made on changing any branch of the 1319 law it is necessary to know what the repercussions are going to be; and that requires a great deal of research.
We have had a very good example of this in your Lordships' House within the last few weeks in the case of the Bill to abolish felonies. This has been advocated for a long time and it could have been done in one section. But the repercussions are widespread. The Sellers Committee produced a very "meaty"Report—there was hardly a sentence in it that was not to the point—and when the Bill came here the pebble thrown into the pond, caused many ripples in many directions. It is a long Bill and one that alters the law in many places. That bears out the contention of the Law Commission that a great deal of very careful research must be put into these matters before concrete proposals for reform of the law are placed before Parliament. I am quite sure that as a result of that attitude we shall have during the next years a number of Bills which will lead, if only we can get them through the rather ramshackle legislative machine, to tremendous improvement in the law both of England and of Scotland.
§ 5.41. p.m.
§ LORD CONESFORD
My Lords, I shall not detain the House for more than a very short time. Noble Lords in all quarters of the House are grateful to the noble Lord, Lord Lloyd of Hampstead, for having introduced this debate. I think he will accept it as a sign of his success that no fewer than four Law Lords have made most valuable speeches. The points I might otherwise have made have been made so much more effectively by the noble and learned Lord, Lord Reid, by other highly qualified Law Lords and others that it would be quite improper for me to say much. I think I shall adopt the practice of the noble and learned Lord, Lord Reid, and mention one of the few matters on which I was not in agreement with previous speakers, rather than reiterate the many on which I found myself in agreement.
In the very forefront of the speech of anybody interested in this subject must be an expression of real gratitude to Mr. Justice Scarman and his colleagues for this Report on their first year's work. I read it not only with interest but with 1320 far more agreement and admiration for its whole spirit than, perhaps, I should have guessed in advance would be the case. I think also that it would be less than generous if I did not, speaking from these Benches, add my congratulations to the noble and learned Lord who sits on the Woolsack. This is a first year's Report that has resulted from a Statute in which he had taken the greatest interest and for which he had shown the greatest enthusiasm. While all of us who took any part in the debates then wished this reform well, I think that it has turned out better than many of us would have thought in advance.
So successfully has it turned out that the noble and learned Lord who sits on the Woolsack may well think—as I do—that it is not at all obvious that the Act of Parliament under which the Law Commissioners are operating needs to be amended. That is why I ventured to interrupt the noble Lord, Lord Goodman, who supported the noble Lord, Lord Lloyd of Hampstead, in suggesting that some laymen should be added to the Commission. I pointed out that that could not be done without legislation, and I am quite confident that it ought not to be done. I am quite confident that if Mr. Justice Scarman had found himself at the head not of a small body of lawyers but of a larger body containing non-lawyers, he would have made not more but less progress in his task. I was very glad that the noble Lord, Lord Silk in, who speaks with experience of another branch of the profession, holds the same view. That, I think, is the only substantial point of difference between my views and some of the views that have been expressed.
I would say that when I first read paragraph 12 of the Report I was for the moment alarmed at some of the words that appear in it. I agree with them; but I do not know why Mr. Justice Scarman and his colleagues had any doubts. They say:We think that a large legal staff would be undesirable at this stage."—I am sure they are right there—It might encourage the Commission to look inwards upon itself for inspiration and ideas, whereas in our view it must look outwards—to the legal profession and to the public.I cordially agree with that view, and I do not think they need apologise for not demanding a larger staff.
1321 May I suggest to the noble and learned Lord who sits on the Woolsack one quite minor reform which he might bring about? The Report we are considering, the First Annual Report, and the Report on obsolete Statutes to which we had to make reference the other day—and which was, in fact, referred to in the Explanatory Memorandum of the Criminal Law Bill—have a disadvantage absurd in anything emanating from the Stationery Office. They have no number anywhere by which one can refer to them. The Report which we shall be considering next week is a Command Paper and has a number. I think it ought somehow to be possible to ensure that a document referred to in an Explanatory Memorandum should have a reference number which can there be mentioned. I need hardly say that our admirable Printed Paper Office always helps us in these matters; they find the document very quickly, but even they would be saved a great deal of trouble if this simple reform could be brought about.
My Lords, there is only one other matter on which I should perhaps say a word. I ventured to intervene when the noble Baroness, Lady Summer skill, was attacking the procedure of another place. I still think it undesirable that we should discuss the procedure of another place, just as I think it would be considered undesirable by old Parliamentarians in another place to discuss the procedure of this House. But as this attack was made, might I, as an old Hous of Commons man, remind some noble Lords of one very important fact? The effect of one Member sitting in his seat and saying "Object" is to prevent a stage of a Bill being passed without discussion. That is the only effect: it prevents a stage of a Bill being passed without debate. It is a most charming feature of the noble Baroness that she is always so certain that her handiwork is good that she thinks it ought to be passed in all its stages, if necessary without debate. It is genuinely possible to take another view. That is all I would say on the matter.
§ BARONESS SUMMERSKILL
My Lords, may I ask the noble Lord, Lord Conesford, this? When the sharp "Object" comes, what precisely would he do in order to get a debate?
§ LORD CONESFORD
—and I had to wait for a long time. But I still hope that I am a good enough democrat to consider that, however keen 1 may be on a legislative proposal, if I am in the House of Commons I do not regard it as outrageous that the House of Commons should desire to discuss it before they approve it.
§ BARONESS SUMMERSKILL
My Lords, I feel it is quite wrong for the noble Lord, Lord Conesford, to misinterpret this matter to the House. He knows as well as I do what follows that word. For instance, why did I not get a debate, if I had all the Law Lords on my side in the case I mentioned, when someone shouted "Object"? Why did not the Law Lords say to me, "Now we will proceed with the debate"? There is no method of proceeding. So far as they were concerned, that ended the matter—the one word, "Object".
§ LORD CONESFORD
My Lords, of course the word "Object" ends the matter on that day, because it means that a stage of the Bill cannot be passed without discussion. That may strike the noble Lady as outrageous, but, as a democrat, I cannot think it outrageous that the House of Commons, or even a few Members of the House of Commons, may take the view that a Bill, however worthy, ought not to be passed without discussion. However, I have made my point. I think that some noble Lords who have not sat in another place may have an erroneous view of what happens there, and I thought that, as an old House of Commons man who loved the other place, I should enlighten them.
§ 5.52 p.m.
§ BARONESS EMMET OF AMBERLEY
My Lords, I hope that I may be forgiven for saying a very few words, though my name is not down on the list of those to speak because I was afraid that I might not be here this afternoon. Those of us interested in the many problems which still affect women in family life and so on are delighted to see the attention that is 1323 being paid to these matters by Sir Leslie Scarman and his Commission, and I wondered whether I could just underline three points in the hope that perhaps the attention of the Commission might be drawn to them.
First, the Report discusses how the domestic courts, the lower courts, shall be conducted. The reference is on page 16. I feel that still too often these lower courts are badly conducted from the point of view of the two parties concerned. I speak with a certain amount of experience because I was for six years a chairman of such a court and have attended others since. I think that they should be courts that so far as possible put the parties, who are obviously at that time under very great strain, at their ease. Too often both husband and wife are put in the dock, and a criminal court which has not been converted for use as a domestic purpose court always gives the impression of being a criminal court and that the husband and wife are guilty parties. I think there is a lot to be clone in that direction, especially if one is going to try to get any form of reconciliation.
I should like to say a word about the heading in the Report referring to archaic and obsolescent procedures. I hope that this Commission will have a look at the very archaic business of judging the marriage ability of a widow. It is very derogatory to a woman who is having damages assessed for the judge to assess what he thinks is her marriage value. It dates back to the old slave market attitude, and I am sure that that is something which should be abolished. Then there is the question of domicile. In chapter 12 attention is paid to the recognition of foreign divorce decrees and other decrees. A great deal of trouble over domicile results for a woman who is seeking a divorce or a separation if her husband has disappeared or gone abroad, and there is a good deal which needs to be caught up and put straight.
Lastly, my Lords, there is the question of the guardianship of children. I believe that this matter was raised in this House some time ago by the noble Lord, Lord Chorley, but his Bill did not go through. We feel it is time that the rights of a mother with regard to her children should be put on an equal basis with those of the father. Nowadays, when so many marriages split up and 1324 people travel so much, and when as a rule children are left with the mother, she is often in great difficulty over matters of guardianship, unless she goes to court and claims her rights. The father has rights automatically. Many of us feel that this is now an unpractical position and that the mother and father should share equal rights in the guardianship of children. I hope that this matter will also be given attention by the Commission.
§ 5.57 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, it is a felicitous occasion on which I can join in the chorus of thanks which has been expressed to the noble Lord, Lord Lloyd of Hampstead, for introducing this debate this afternoon, while at the same time pointing out that the authors of the very Report to which he is drawing attention have themselves been busy thanking him for the contribution he has made to the success of the Law Commission's progress. The reference will be found in paragraph 138. It is obvious that when the Law Commission have the expert assistance of people like the noble Lord they will, clearly, be able to progress very much more quickly with their labours. I should like to apologise to the noble Lord and also to the noble and learned Lord, Lord Reid, and to the House, for having missed the beginning of this debate. I am afraid that I could not help it. But my extensive spy system has informed me of what occurred. I shall therefore simply have to wait for the stimulation which has already been so enjoyed by the noble Lord, Lord Silk in, until I can read the debate tomorrow morning in the OFFICIAL REPORT.
At this stage in the debate I, like the noble Lord, Lord Chorley, am not going to suggest any new topics for the Law Commission to consider during the course of the next year because there have been a number of suggestions this afternoon and others from outside in the course of the past year; and I do not think the Commission are unfertile in their imagination in thinking of new subjects to discuss. It would, I think, be hard and unreasonable to expect the Report of the first year's working to contain very much except a description of the methods that the Law Commission are using to achieve their results and a reference to a few 1325 Reports which they have already succeeded in making. But it must be of immense interest to see the progress they can report and also the greatly interesting variety of methods which they have adopted in order to approach the very varied selection of subjects on their list.
The matters to which I should like to draw attention are really the results that we have already been able to enjoy and examine from the Law Commission's hand, and although it is not in the Report, I believe they did a very useful service when they took up some undoubted problems on the Misrepresentation Bill—matters which had been much discussed and disagreed about in this House℄and produced a result which finally, I think, pleased everybody, at any rate everybody at this end of the Palace of Westminster.
The Interim Report on Distress for Rent I think answers one of the matters raised by the noble Lord, Lord Lloyd of Hampstead (and I think this was also pointed out by the noble and learned Lord, Lord Morris of Borth-y-Gest), that even if you do not have lay members on the Commission there is nothing to stop the Commission—indeed they have already seen the wisdom of putting it into operation—from consulting very widely all the interested parties, both professional and lay, who may be able to help them in the consideration of the matters in hand. They asked the advice of twelve Government Departments and of no fewer than 51 other bodies, including the Citizens' Advice Bureau and professional bodies which are as well known as the Royal Institute of Chartered Surveyors and, for me at any rate, as unfamiliar as the Association of Certified Bailiffs. They took a great deal of trouble; and I do not believe that if this method is adopted they are likely to find any shortage of proper reaction from the lay community.
When I come to the interim report apparently made to the noble and learned Lord the Lord Chancellor on a point on land registration, I come to the first thing that I really want to say. Although in the Report they say that they have told the noble and learned Lord and Parliament what they recommend, I have not been able to get a copy of what they said to the noble and learned Lord. If there is one thing which will be of value in the 1326 work of the Law Commission, it will be that their conclusions, whether interim or final, should be as widely available as possible, so that we may see how they have approached a problem and how their conclusions fit in with the various other subjects which may be discussed by them or in Parliament or elsewhere. Therefore I would ask the noble and learned Lord whether, first, I am right that this Report was not published, and, secondly, whether he could in future, unless there is some overwhelming reason why he should not, see that these Reports are available to the House.
The Commission also reported on matters which we dealt with in the Land Registration Bill. Although I think there is nothing particularly controversial in that—it was a patching-up policy—I am sure it would have been interesting for the House, instead of having the Explanatory Memorandum in front of the Bill, to have had a Report from the Law Commission, so that we could study more fully what were the reasons behind the proposals. Of course, we got them in the Second Reading speech of the noble and learned Lord the Lord Chancellor, but when we were looking at the Bill for the first time the opinions of the Law Commission on the subject would have been most welcome to Members of the House.
We have already heard that the Law Commission has made a Report on Divorce (Command Paper 3123). We are discussing this next week, but hope that I may be allowed to say something on a point arising on this subject, which comes under the general heading of family law. The noble Baroness, Lady Summer skill, has already paid tribute to the Law Commission for the help she received in drafting her Bill. It may have been because I was not listening or was not here, or I do not know why, but I had no idea at the time when that Bill was debated that it had been drafted by the Law Commission.
§ BARONESS SUMMERSKILL
My Lords, on the Second Reading of the Bill I even gave the name of the draftsman, the lady who helped me.
VISCOUNT COLVILLE OF CULROSS
My Lords, I am much obliged to the noble Lady, but what she says does not in any way vitiate my point. I understood 1327 that that Bill was an urgent matter because of the decision in National Provincial Bank v. Ainsworth. That case, if I may say so with great respect in the presence of noble and learned Lords, was not a particularly easy decision, and dealt with a matter which is not particularly easy to learn, either. Whether we like the fenestration of the noble and learned Lord, Lord Denning, or that of some of his brethren, nevertheless there are two views upon the architecture of this subject. So, when the Bill was debated in your Lordships' House, some noble and learned Lords thought one way and some thought another.
Surely the moral is this: if there was a case for an urgent reform of the law dealing with the decision that had been made in that case, we should either have had a fully-thought-out and comprehensive change of the law based upon a full study of the circumstances, of what ought to be done and of the policy that ought to be adopted, or we ought to have had something that would temporarily have held the fort. In either case, I suggest that it would have been of the greatest assistance for the House to have been informed by means of apaper from the Law Commission, if they were involved in it at all, of what in their view were the merits and demerits of one solution and the other. Had we had this—and I do not believe that we had—it might have been a great deal easier for this House to discuss sensibly and come to the right conclusion upon the provisions of that Bill, about which I am still very unhappy. I believe that if Bills are going to emanate from the Law Commission, even if they only draft them, it would be of great assistance to have their comments in an accompanying paper for us to look at.
Perhaps the same remarks apply to the Family Provision Bill, because we are told in the Report that, unlike some other matters they are dealing with, this was in the nature of a temporary provision before they come later on to a more drastic overhaul of parts of the Inheritance (Family Provision) Act and of the Matrimonial Causes Act, which were consolidated in 1965. Again a Report from the Law Commission as to how these temporary expedients fit into the pattern of their thinking would be useful, and particularly useful at this stage, the 1328 early stage of their life, when the general pattern of their thinking has not yet emerged and we do not know and have no way of judging how these temporary expedients are going to coincide with the general line which is subsequently going to be taken on a broader front by the Law Commission.
The other matter that arises under family law, which I hope I shall not be considered too controversial about, was foretold in the debate on the details of the first programme. The noble and learned Lord, Lord Reid, drew attention to the dangers of referring matters like divorce and other matrimonial problems to the Law Commission. The noble and learned Lord said that he thought it was a complete waste of time for the Commission to apply their minds to questions of policy. He said: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."—[OFFICIAL REPORT, Vol. 271, col. 442; 9/12/65.]The noble and learned Lord the Lord Chancellor, when he came to wind up the debate, refuted this by saying:… I think there may be subjects about which one can say, 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 would appear to be the advantages or disadvantages of so reforming the law.He said that he thought it might save a great deal of time.
I entirely agree that that might be so, but it is equally true that we are entering into a dangerous realm when this type of subject is referred to the Law Commission, and I would put this forward as a matter to be considered by the noble and learned Lord the Lord Chancellor when he comes to decide whether these subjects should go to the Law Commission at all. Perhaps I can illustrate this simply by quoting a few words from the Report (Cmnd. 3123). In paragraph 15 the Commission set out "as it seems to us" the objective of what a good divorce should be. Later on they go on to interpret those objectives in certain practical ways so as to give guidance as to what conclusion they think might be more satisfactory.
1329 I realise the circumstances in which this Report has been given, and the delimitation that has been put by the Commission upon the scope of what they were doing. Nevertheless, they have been bound, I think, to set out at the beginning what they understand to be the policy, and then to interpret the policy, when they are doing the operation which the noble and learned Lord, the Lord Chancellor, set them to do. If one is going to invite the Law Commission, as the noble Baroness, Lady Summer skill, did earlier on, to look at wide objects of family law, these may be most dependent upon the policy, considerations of what we ought to do. It does not matter for this purpose whether I agree with that policy or not, or whether it is universally accepted or is controversial. Nevertheless, where policy is involved, it seems to me to be a dangerous precedent that the Law Commission should have to start their thoughts, however circumscribed their scope of action might be, by setting out what they believe the policy to be. If they are going to have this sort of task given to them, I suggest that it is the task of the Lord Chancellor of the day to tell them what the policy is within which they are to work, and then that they should follow it through thereafter and find out the type of matters they are qualified to examine and on which to give their conclusions.
It occurs to me to wonder about this, whether if the noble and learned Lord the Lord Chancellor refers matters of this sort to them it means that at long last we are going to have Government intervention upon them. Because if the noble and learned Lord thinks it is suitable for the Law Commission to report upon divorce, then 1 think it is most suitable that the Government should consider whether or not they take a greater role in interpreting the policy set out tentatively by the Law Commission and upon which the whole thing will have to be based.
It is not necessary, I think, to refer to the Report which the Law Commission issued on the subject of obsolete crimes. This has been mentioned by my noble friend Lord Conesford, and it is a valuable addition to the Criminal Law Bill which we shall be discussing again next week. The rest of the Annual 1330 Report, as the noble and learned Lord, Lord Wilberforce, pointed out, really deals with the research that is going on. I would most heartily agree with the noble and learned Lord that when all this evidence of the most earnest and thorough research is before the House, it would be wrong for us to expect rapid floods of results to come from the Law Commission, because it must be of the greatest importance that the full details of each subject are worked out as completely as possible.
I therefore go on to deal with one last point, on the part of the Annual Report towards the end where the Commission deal with some of the more obscure matters, perhaps, but matters which are nevertheless extremely important. I refer to item XVII, the interpretation of Statutes. I believe this to be of the greatest importance, and various noble Lords have spoken about it this afternoon. If we are to have ideas coming from the Law Commission about new forms of legislation, of codes, and possibly, as we see in paragraphs 107 and 108, some assistance given to the courts in the interpretation of these codes and these Statutes, which I think may not all be found, as we find at the moment, in the actual wording of the Statute; and if we are going to have consolidation of Statutes with amendments greater than those which are allowed under the 1949 Act, and which go to the Joint Select Committee on Consolidation Bills upstairs, then a great deal will turn on Parliamentary procedure. This point has been made by a number of noble Lords this afternoon. I believe, however, that it is possible that Parliament could assist in this regard.
Again, if we are to progress rapidly with these proposals as they come forward from the Commission, I think this House, and I am sure the other place, would be glad to have their views on possible methods in which these matters may be dealt with. If we are to deal with legislation on an entirely new form, including perhaps explanatory memoranda or possibly annotations as to the various sections, and if we are going to codify, are we going to abolish the previous Case Law? For instance, does Parliament wish us to deal with these matters upon the basis that in future Case Law will not be able to be added and used as a gloss to 1331 the words of the Statute, but rather that Parliament, in its assistance to the judges, should be all-comprehensive in the advice that it gives?
Then again, how are we satisfactorily going to attack the consolidation of something like the taxing Statutes if we do not invent at the same time a system of instant reconsolidation every time one has a Finance Bill? I do not believe it will be any good to leave this to the ordinary Consolidation Bill procedure, because, as your Lordships remember, the Finance Bill comes to us late in July, or perhaps, as this year, early in August, and it will not be until some time the following March, or perhaps even later, that the Consolidation Act will be able to be dealt with by the Joint Select Committee, and by that time it will be almost the moment to introduce another Finance Bill. Some quicker method will have to be invented for that.
Again, when various noble Lords deal with the preoccupation of Bills on every possible contingency that may arise, I hesitate to agree. It may be that in some cases one can unencumber the law from a great deal of its technicalities. But, on the other hand, when one is dealing with matters of administration, I believe that this House, and I am sure the other place, are anxious to know in detail what are going to be the powers of Ministers, local authorities and others to interfere and control the life of citizens; and we should wish to make sure that the powers they are given are clearly and in detail laid down in the Act in a way that can be understood. So it is not entirely a straightforward matter.
I should hope that when we are dealing with these matters of procedure and Statute form we could have some papers soon from the Law Commission, setting out, perhaps in the most tentative form, the ways in which they think these effects might be achieved. I am afraid that until those papers come I shall be a little sceptical, because success in this field must at the same time achieve that Parliament knows what it is legislating, and also that people's rights arising out of the legislation are clear to them, or as clear as it is possible to make them, from reading the legislation itself.
1332 This is not perhaps an occasion on which to be controversial, and I apologise to the House if I have said things, particularly about the Divorce Report, which might seem so, because, like all other noble Lords, I would join in thanking the Law Commission for the Report they have produced, for the initiatives they have taken and for the progress they are making. I am sure that noble Lords on this side of the House, as I think my noble friend Lord Conesford has already said, would join in their tribute to the Law Commission, and their confidence that in their hands during the next year we shall have a very safe keeping of the subject of law reform.
With this final word I will sit down. I believe that the Law Commission is a slightly delicate instrument. I do not think it is a panacea for all the ills of the State, and I hope that it will not be encumbered by too many people trying to get it to deal with matters of policy which are not really matters of law reform, suitable for it.
§ 6.20 p.m.
§ THE LORD CHANCELLOR
My Lords, I should like in the first place to thank my noble friend Lord Lloyd of Hampstead for having introduced this Motion this afternoon. It has, I think I may say, produced a very good and interesting debate. I am of course delighted, as I know the Law Commission will be, at the tributes which have been paid to their work and at the rather remarkable absence of virtually any criticism at all.
Your Lordships may remember that when the Law Commission Bill was before your Lordships' House different views were expressed, and there were some who thought, no doubt quite genuinely, that the Law Commission would comprise a long-haired, wild lot of Left-Wing lawyers who would do some frightful things. I never could make out what it was supposed they would do, but that was the suggested atmosphere, and I am naturally as delighted as the Law Commission must be at the universality of the praise they have received in your Lordships' House this afternoon.
My noble friend Lord Lloyd of Hampstead would, I think, have preferred that they should have been the overlords of every kind of law reform. So, from many 1333 points of view, should I. But there was so much to be done in this field that one had first of all to consider what should be done with the existing Committees—the Law Reform Committee and the Criminal Law Revision Committee—and I should have been reluctant to dispense with their services. Nobody had any complaint of the work which those two Committees had done, except that, being very busy Judges, barristers and solicitors, with the small amount of time they could devote to it the end result was, in a sense, only scratching the surface. But they have done valuable work in the past, and it would have been a pity if they had simply been abolished.
Then there are particular subjects which may need particular kinds of committees—for example, the Committee which, as your Lordships know, I have appointed, and of which Mr. Justice Latey is Chairman. That Committee is considering whether, for most purposes, 21 should continue to be the right age of majority; and there are members on that Committee with special experience of young people and their problems, and of other people who are likely to be affected if any recommendations to change the age were made and carried out. There is also the Committee of which Mr. Justice Winn is Chairman, which is to consider the method of trial of personal injury actions and which includes among its members men who have a special experience in that kind of litigation. There is another Committee—which is not really dealing with law reform as such—which is considering the mechanical recording of court proceedings.
One could understand anybody saying that all our legislation would be the better if the Law Commission had looked at it first; and my noble friend mentioned in particular the Companies Bill. But he added that the Law Commission cannot be expected to do everything; and that really is the position. It would obviously be impossible that all Government legislation should have to be vetted by the Law Commission.
My noble friend then referred to Parliamentary time. So far nothing awful has happened. I thought his illustration of a road was the right one, because it has always seemed to me, looking at London traffic during the last five or ten 1334 years, that it must be only a question of time before the whole thing comes to a complete standstill if everybody who wants to bring a car into Central London is allowed to do so. But it seems to me quite hopeless to suggest that nobody should be allowed to bring a car into Central London without a licence, or something of that sort, until people can see for themselves that the whole thing is coming to a standstill. It is the sort of thing to which they are only likely to agree to when the whole traffic seizes up, and I have always thought that a Law Reform Bill would be like that. It is not until Parliament sees a pile of law reform Bills waiting, and until Questions are repeatedly asked in the House as to what is being done about them, that Parliament, and particularly another place, will make such alteration in its procedure as to enable such Bills to be taken.
My noble friend then referred, as many other noble Lords have done, including the noble and learned Lord, Lord Reid, to the question of drafting and the interpretation of Statutes. This is a difficult question. I think the Law Commission themselves regard it as the most difficult question which they have to face and overcome—if, indeed, there is a solution to it. I know that a little time ago they had a complete weekend at All Souls' on nothing but Parliamentary drafting and the interpretation of Statutes, which to some extent are two sides of the same coin.
I do not think that any suggestion I am likely to propose is at all likely to be right, and I am taking the course of waiting until the Law Commission have had time to see what they think is the right solution. I shall, of course, bear in mind what the noble Viscount, Lord Colville of Culross, said about that, what you do if you have a code, and what you do about stopping people citing cases before the introduction of the code. Are you allowed to cite cases before the code? I am quite clear about it. I would say that it should be a criminal offence, with a fine of £100, for any barrister or solicitor to cite a case decided before the code. I do not think you will stop them in any other way. Indeed, I am sure you will not, and that would seem to be a most reasonable thing to do. But that is only my opinion, and the Law Commission will know much better than I do.
1335 The noble and learned Lord, Lord Reid, raised the question of draft Bills. In the ordinary way there will be a draft Bill accompanying any proposals they make. The noble and learned Lord may care to look at some clauses which follow a Report which is still being printed on the tort and crime of maintenance. The clauses at the end are appropriate to a Law Reform (Miscellaneous Provisions) Bill if the recommendations made in the Report are implemented. I draw attention to them only because they seem to me to be written in English which anybody can understand.
Then the noble and learned Lord asked about Parliamentary draftsmen. I cannot report any good news there at all. I entirely agree that if we are to make real progress in consolidation—consolidation of Statutes in which the law is not altered, of the type covered by the 1949 Act and which are considered by the Joint Committee—it depends entirely on having sufficient Parliamentary draftsmen. How much of it one can do in any period of time depends on just that. But Parliamentary draftsmen are not at the moment obtainable. They are, of course, counsel; and they have always been men. I do not consider that either of these specifications (if that is the right word) is necessary. I see no reason why solicitors should not be recruited to the office or, of course, women, if they are qualified. But, even so, it is extremely difficult at the moment. As the noble and learned Lord knows, it is difficult to get any lawyers from anywhere to do anything. My Department is short, and the Attorney General's Department is short. As the noble and learned Lord may know, and as I think I said recently in the House, in the year before the war there were three vacancies for Government legal staff and the best three out of the 300 applicants were chosen. Last year there were 50 vacancies and only three applicants. These are difficulties which we shall have to surmount as best we can.
I shall certainly pass on to my right honourable friend the Chancellor of the Exchequer the observations made by the noble and learned Lord, Lord Reid, about the Finance Acts, and I cannot myself, I think, go further than that. I was grateful to the most reverend Primate 1336 for his welcome of the abolition of praemunire.
The noble Lord, Lord Goodman, like my noble friend, Lord Lloyd of Hampstead, wanted to have laymen on the Commission. I am not at all sure about that, and in any case I rather think I agreed with what the noble Lord, Lord Conesford, said about it. In any case it could not be done without altering the Act. As some noble Lords may remember, there was some degree of conflict when the Bill was in Committee. I was always trying to obtain for future Lord Chancellors as much discretion as possible, while those who were very apprehensive about this very extraordinary Law Commission were anxious to tic the Lord Chancellor down as much as possible. Under the Act as it is, the members must be lawyers. And I remember we had quite a battle about numbers. They said it must be five. I said I think it is probably the right number but some day they might be able to manage with three, so why tie the Lord Chancellor down? They said "No, you cannot have more than five nor less than five: it must be five", and they carried a Committee Amendment against the Government, because they absolutely insisted on five. So no such thing could in any case be done without at least two amendments of the Act itself.
Then the noble Lord, Lord Goodman, hoped—and this was an original thought to me—that the Law Commission would review areas of law and state their conclusion where appropriate that no reform of the law is necessary in those fields. I am sure they will consider that suggestion.
The noble and learned Lord, Lord Wilberforce, wondered whether the Commission had taken on too much. I think a number of us thought this when we saw the first programme. But there are two things about it. I think one of your Lordships—I am not quite sure who—obviously thought it was supposed to be an annual programme. That is not so. The Act says that it is to produce a programme from time to time, not annually. Nor is there any indication as to how big a programme it is to be or how small. There is nothing to stop the Law Commission under the Act from bringing out what one might call a three months' programme, what nowadays 1337 would be called a "mini-programme", or a three years' programme. I know the Law Commission never thought for a moment that some of the things in their first programme could possibly be carried out in a year. One always knew that something like codification of the law of contract would take two, three or possibly five years. There is some misconception if it is thought it was intended to be a programme for one year.
As to the transfer of land, of course this is a very big problem. On the other hand, there are, I suppose, sections of it which could, so to say, be taken together. I do not know, but the noble and learned Lord, Lord Wilberforce, would know much better than I do. We have at the moment three things; there is the noble and learned Lord's Committee's Report on positive covenants; before long he Law Commission will, I think, produce one on negative covenants; and then there is a report, which I think is now published, not from the Law Commission but from the Law Reform Committee, on the law of easements. It may be that those three could usefully be combined in a Bill.
It is true that it did not include company or commercial law. This is partly because like every new institution the Law Commission has had to win friends, so to say, and of course historically the Board of Trade always dealt with company law and what they would call consumer protection law; and it may take time before it is realised that, where something is not really Party political, there is a lot to be said for letting the Law Commission do it. I think it was my noble friend Lord Silk in who had thought that the programme was to be an annual one.
§ LORD AIREDALE
My Lords, if I may interrupt the noble and learned Lord, the Commission call this document its First Annual Report, so it looks as though the Commission themselves are embarked on a course of annual reports.
§ THE LORD CHANCELLOR
That is quite right. There are two quite different things. The first is their programme, what they intend to do, and the Act provides that they are to prepare a programme of the fields they intend to cover. This programme is to be produced from time to time. But then they are to make an annual report showing how far they 1338 have got at the end of each year. So the programme is not intended to be a programme for a year. It is for an unspecified period, and they can produce a new programme at any time and of any length; but they must make an annual report on what they have been doing during the year.
The noble Lord, Lord Silk in, referred to what they had done and the Reports they had made. The noble Lord, Lord Airedale, is looking forward to their report on D.P.P. v. Smith. This is, of course, a case of great importance to all lawyers, particularly since it was in a sense the point at which the Australian High Court decided to depart from always following decisions of the House of Lords. Since the abolition of capital punishment its practical effects, which would have been considerable, will now in fact be very much less. As I said, the noble Lord, Lord Silk in, referred to what they had done. There are, of course, two Bills at the moment. In the field of family inheritance and property law there is the Family Provision Bill, which I understand will return from the Commons and receive the Royal Assent to-morrow.
There is the Matrimonial Homes Bill, which we must hope will not be very far behind; we must keep our fingers crossed. There is the Report on obsolete crimes, and the Criminal Law Bill, part of which is based on that, and which is before Parliament at the present time. There is one on distress for rent. There is one on changes in procedure in the Chancery Division on applications under Part II of the Landlord and Tenant Act 1954, which has not seen the light of day because I received it only yesterday, but it will be printed in due course. There is a Report on the powers of the Court to sit in private on family matters, which is being printed. There is one on tort and the crime of maintenance, which again is being printed. While I must not refer to them as a machine, there are products in the pipeline.
VISCOUNT COLVILLE OF CULROSS
My Lords, could the noble and learned Lord say at this stage what happened to the interim report about transfer of land? That was apparently submitted to the noble and learned Lord in November, 1965. I cannot believe it can still be being printed.
§ THE LORD CHANCELLOR
This was a report, I should have thought, of interest to nobody. It was simply a report as to whether they agreed or did not agree with proposals under discussion by the Law Society, which the Law Society itself on reflection decided to abandon. I should perhaps point out to the noble Viscount that there are of course two different things. There are proposals for reform under Section 3(1)(b), and there is advice and information under Section 3(1)(e). Fortunately, I do not think many of my colleagues have yet discovered, though I did it deliberately, that in Section 3(1)(e) there is a power for any Minister to ask the Law Commission for advice and information on any point. There is nothing to make the Law Commission reply, but they are entitled to reply. This, after all, is the general framework, because although the Government must approve their programme, after that the Government can do nothing. That is what I have always liked about the Law Commission: that they are completely independent. I have no power at all to tell the Law Commission, "You are to stop doing this, and you are to do that." This is another of the controversies we had, but on this point I won. I have always been glad that I did. They are a wholly independent body.
So far as the Matrimonial Homes Bill was concerned, which was one point raised by the noble Viscount, that was one of those cases in which the Government said, "This decision of the House of Lords, although no doubt right in law, ought, as they themselves intimated, to be changed by Parliament. But we have no Parliamentary time to do it at all. If somebody else likes to do it we will help". The noble Baroness, Lady Summerskill, announced that she was going to introduce a Bill, and in fact, if my recollection is right, I think had a draft Bill. But we all know the difficulties of the private Member who has no help from a Parliamentary draftsman. So the Government said, as Governments sometimes do, "We approve of the Bill you are going to introduce. But it is better to get it right, and we will provide you with a Parliamentary draftsman".
Whether the draftsman was one of the draftsmen dealing with Government Bills or one of the draftsmen with the Law Commission does not matter to anybody 1340 except the Government and the Law Commission. They are one corps of Parliamentary Counsel. They have not been split in any way, and they are with some frequency changed as between the Law Commission and Parliamentary Counsels' Office. So it is a pure matter of convenience whether one Parliamentary draftsman or another drafts a Bill. In the case of the Matrimonial Homes Bill it proved to be rather more complicated than had been thought, and accordingly my Department, and to some extent the Law Commission, put their heads together, and the Bill was in fact drafted by one of the Law Commission's Parliamentary draftsmen.
I have pointed out the difference between the proposals for reform, under Section 3(1)(e), and advice and information, under paragraph (d), only for this reason: when the Bishop of Exeter's Committee put forward their Report—or, more accurately, when the most reverend Primate was good enough to send me an advance copy—I realised that this was a document of immense social significance; that the law is not an easy subject for laymen, as most of the Committee were. I knew that Mr. Abse had a Bill in the House of Commons. I had been told by a noble Lord that he was (and I think still is) introducing a Bill here. I thought it would greatly assist me to get the picture clear if the Law Commission had time to give me a document saying what they thought the different alternatives in the field now were; what they saw as the probable advantages and disadvantages; what had happened abroad when any of these particular reforms had been tried—in short, a handle to see where we had got to.
I thought at the time it was possible that when I got their Report I might lay it before Parliament. When I got it (but this was under paragraph (e), advice and information to me), it was a great deal longer than I thought it would be. But it was so full, it cleared up a large number of popular misconceptions about the present divorce law, and it did exactly what I hoped it would do—namely, set out the field of choice—that I thought that this would be both instructive and useful to any Members of either House who were considering this particular reform in this particular field, and I therefore decided to lay it before Parliament.
1341 The noble and learned Lord, Lord Morris of Borth-y-Gest, said—and I agree—there should be a number of things coming from the Law Commission which are mainly lawyers' law reform and should be suitable (and I hope they will be) for a Law Reform (Miscellaneous Provisions) Act. I ought to say, in answer to one point made by my noble friend Lord Lloyd of Hampstead, that of course there is now in another place what is called a Second Reading Committee. This is rather like the Scottish Grand Committee. Anything which goes there is not dealt with at all on the Floor of the House, until the Third Reading. So a Bill dealt with under this procedure takes up no Second Reading time, and of course no Committee time. There is now a Second Reading Committee which was intended to be for non-controversial law reform bills. But it is, I think, a defect of the procedure that a Bill can get to the Second Reading Committee only if the Opposition agree; and then only if they agree that it is non-contentious. Therefore, few Bills, so far, have gone to that Committee.
We have heard from my noble friend Lady Summerskill a little about what happens in another place. The Family Provision Bill had been agreed to be non-contentious and was to go to the Second Reading Committee. This had been agreed through the usual channels in another place. But five minutes before the formal Motion sending it to the Second Reading Committee was to be called on, there was a row in another place between the rival political Parties. It had nothing whatever to do with this Bill, and, simply because feelings were running high when the Speaker put the Motion referring this Bill to the Second Reading Committee, a number of Back Benchers stood up and said, "No". I suppose that is the sort of thing over which lawyers have to be patient.
I agree with the noble and learned Lord, Lord Denning, that procedure is important; and so, of course, is the position of children and the procedure in relation to children. It is an old suggestion that the Probate, Divorce and Admiralty Division, as constituted for historical reasons, is inappropriate to-day. The probate of wills ought to be dealt with in the Chancery Division, and 1342 Admiralty matters allied to the Commercial Court. This would leave the present Divorce Division as a real family division, and it would have transferred to it wardship and adoption cases which are now dealt with by the Chancery Division. Those, I think, are suggestions which ought to receive further consideration.
I am most grateful to the noble Lord, Lord Conesford, for pointing out that there was no number on the Reports. I had not noticed that myself. I am sure it would be convenient if there were. In answer to the noble Baroness, Lady Emmet of Amberley, I am sure that the Commission will consider the point to which she has referred, about family courts, domicile and the guardianship of children. There is, I think, some misunderstanding about this question of marriageability. From reading the newspapers a number of people perhaps think that Judges take some delight in deciding whether some unfortunate woman appearing before them is likely to marry again. But Judges can do nothing except follow the law. It is an Act of Parliament called Lord Campbell's Act. It gives compensation to women whose husbands have been killed owing to somebody else's negligence.
But the arrival at the sum of money has been laid down by Parliament. Nothing at all is to be allowed for injured feelings or the fact that she has no husband; it has to be a cool calculation of exactly the amount of money which she has lost. The Judge has therefore to see what she used to get from her husband during his lifetime—what she got for housekeeping money, who paid for the holidays, who paid the rates, who paid for their clothes, and then how much the husband's keep cost, so arriving at what she has actually lost. If she is married very shortly after his death, then obviously she has lost the degree of dependency, because now she has another husband which she would not otherwise have had. It is simply for this reason that a Judge has to pay some attention to the fact whether she is an attractive girl of 21, or an elderly lady who is very unlikely to marry at all. But it is no good blaming the Judges for having to apply the law. We shall have to alter the law.
1343 I agree with my noble friend Lord Chorley that there might have been more suggestions from Judges. I suspect that the Judges probably make their suggestions rather more informally than in writing, and perhaps they do not get credited with as many suggestions as they ought. My noble friend Lord Chorley also asked about Section 210 of the Supreme Court of Judicature Act. The answer is, Yes. There have been years in which there was no Council of Judges, but since I have held this office, as the Act says there is to be such a body, there has been, and we have had, both last year and this year, a Council of Judges, although I cannot say many proposals for reforming procedure in law have come from them.
My Lords, if there is any point which any noble Lord has raised and which I have not answered, I hope he will forgive me, but the hour is getting late. Again, may I thank my noble friend Lord Lloyd of Hampstead for putting down this Motion to-day. I personally am delighted about the Law Commission, both about the Commissioners themselves and the work which they have done. I am gratified indeed to find that the House so much shares my opinion.
§ 6.52 p.m.
§ LORD LLOYD OF HAMPSTEAD
My Lords, we have had a most interesting and informative debate, and I am sure the last thing your Lordships would want would be another speech from me. It only remains for me to express my gratitude to all noble Lords and noble Ladies who have contributed to this debate. I should like particularly to thank the noble and learned Law Lords who, amidst their weighty and important official preoccupations, have found time to come along and give encouragement to the important work of the Law Commission and to make a number of valuable and critical suggestions, which I am sure will receive the closest possible attention of all the Commissioners. I should also like to thank my noble and learned friend the Lord Chancellor, who has replied to all our questions with his invariable courtesy, candour and lucidity. My Lords, I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.