THE LAW: MINISTERIAL RESPONSIBILITY

HL Deb 30 March 1971 vol 316 cc1273-313

5.30 p.m.

LORD GARDINER rose to ask Her Majesty's Government which Minister is, or which Ministers are, responsible for the state of all, or a part or parts, and, if so, which part or parts, of the law of England and Wales. The noble and learned Lord said: My Lords, I take it that the object of putting down an Unstarred Question is to enable some words of explanation to be made of the Question which is asked and to enable whoever is replying for the Government to give more than a sentence or two in answer where the subject does not really justify a whole afternoon's debate. If that is so, I hope it may be thought that the Question I have put down is a proper one. I believe it to be an important one.

We have in the last five or six years, as your Lordships know, made very considerable progress in the reform of our law and legal system; and in those spheres for which the noble and learned Lord the Lord Chancellor is responsible, this Government are continuing to do so. But I believe that the subject of the Question which I have put down is likely, in the years ahead, to prove a considerable barrier to further advances in other fields unless we can clear up this particular matter.

If one asked the question, "Who is responsible for our law?" there is no answer, in the sense that it is written down anywhere in the Constitution. But it is, I think, usually thought that the Lord Chancellor is responsible for our civil law and that the Home Secretary is responsible for the criminal law. I remember, when even more ignorant than I am now, and when a young junior barrister, finding something in the criminal law which seemed to me to be a great injustice. I wrote to the Lord Chancellor about it. He sent me back a very polite reply, thanking me for my letter and saying that this was obviously a matter for the Home Secretary. So I wrote to the Home Secretary, and I got back a very polite reply thanking me for my letter and saying that this was obviously a matter for the Lord Chancellor. My Lords, it was Professor Keeton who observed that somewhere between the Lord Chancellor's Office and the Home Office is a large hole where projects for the reform of our criminal law lie deeply interred.

In 1962–63 an Estimates Committee, for the first time since the war, looked into the affairs of the Home Office and tried to find out who was responsible for what. The Home Secretary pleaded guilty to being responsible for the criminal law, and the Estimates Committee had a few caustic remarks to make as to how badly he was doing it. They asked him, for example, about the Profane Oaths Act 1745, under which anyone uttering a profane oath in public could be fined—one shilling in the case of a common soldier and five shillings in the case of a gentleman. The Committee inquired whether the Home Secretary had thought it still useful to have this Act on the Statute Book; why he had done nothing about it. The Committee were told that he had not had time to get round to it.

Then the Committee inquired whether our matrimonial law, being civil, was not the responsibility of the Lord Chancellor and they were told, "Yes it is." "Why, then," they asked, "is it the Home Secretary who decides whether the Government are going to make any grant, and if so how much, to the National Marriage Guidance Council?" The Committee could not get any very clear answer about that, except that it was on the principle that nobody else had asked for it and that the Home Office was the rag-bag Department. Then they said in their Report at paragraph 38: The Home Office provided a memorandum, setting out the functions of the Home Office, the Lord Chancellor's Office and the Law Officers' Department in the field of the administration of justice. It appeared to Your Committee that, while there clearly should be the closest possible co-operation between the three Departments, in some instances the division of functions appears to be illogical. For instance, in criminal courts the Lord Chancellor is responsible for the administration and appointment of officers, while the Home Secretary deals with procedure …In the magistrates' courts the Home Secretary deals with administration and appointment of officers, while the Lord Chancellor deals with procedure …

And, my Lords, as I know well enough, the officials of the two Departments are constantly on the telephone to one another saying, "Is this yours, or is it ours?"

The Committee conclude by saying: Your Committee have not been able, within the scope of the present enquiry, to carry out an investigation into the Lord Chancellor's Office. Despite this, they feel that the present division of responsibilities may cause difficulties in the administration of the law, as well as in the reform of the criminal law, to which they have already referred … They recommend that the Home Office and the Treasury, in consultation with the Lord Chancellor's Office, should take immediate steps to reorganise the present division of responsibilities between those Departments concerned with the administration of the criminal law, with a view to rationalising its administration and rendering more effective the methods of bringing the criminal law up to date.

I should like to ask the noble and learned Lord the Lord Chancellor to say when he replies whether that recommendation was ever carried out: whether the meeting with the Treasury took place and, if so, what reorganisation there was; or whether I would be right in guessing that the two Permanent Secretaries simply got together and said, "Well, the Estimates Committee won't get round to us again for a good many years so we can forget about all that".

My Lords, the Home Secretary has recently woken up to the fact that there are now anomalies in our matrimonial law before the justices, and the reason for that is that, with the new Divorce Reform Act, we have, of course, two people—as usual—the Lord Chancellor, responsible for what I might call our matrimonial law in the High Court and the Home Secretary in the justices' courts. Finding these anomalies, he has appointed, hurriedly, a special Committee, of which the Chairman of the Law Commission, Sir Leslie Scarman, is to be Chairman, to deal with that. In a leading article in the New Law Journal of January 21 they say: … we would not question the main proposition in the Home Office statement—that as between the matrimonial jurisdiction of magistrates' courts and that of the divorce courts there are serious anomalies. But the greatest anomaly of all it would perhaps be too much to expect the Home Office to mention: so we will do it for them. It is that whereas when the matrimonial law, or of course other areas of the law, administered by the High Court and the county courts need to be reviewed, the initiative comes from or at any rate falls under the aegis of the Lord Chancellor, the present law reform initiative—merely because it happens to involve the matrimonial law administered by the magistrates' courts—originates with the Home Secretary. Given that he has taken that initiative (and he might of course not have done so at all) the underlying dichotomy of authority is especially remarkable precisely because 'harmonisation' is the object of the law reforming exercise concerned. We recall reading in Lord Haldane's Autobiography how he used to spend agonising hours trying to make up his mind about what ought to be done about the chaotic jurisdictions of the Lord Chancellor's Department and the Home Office—and that was of course in the far less complex conditions that prevailed at the beginning of this century. But even he would have been a bit shaken had he foreseen this latest manifestation of chaos. He would have been surprised too, we suspect, by the extent of present apparent unawareness of a situation that appeared to him to have such disastrous implications.

If I may put the point now from quite another point of view, I get, I suppose inevitably, a very large number of letters from universities, law societies, groups of magistrates and other legal bodies, saying, "Now that you have nothing to do, on what day this year or next will you come and talk to us?" Of course, noblesse oblige, I cannot say, "No day this year or next." So my Lords—Oxford, Cambridge, Leeds, Durham, Chelmsford, Brunnel, Birmingham, and to-morrow Sheffield; and so on. I always leave time for questions, and I always say that the questions need not be confined to whatever it is that I have been talking about. There is no doubt at all what is the most common question which I have been asked in all parts of the country by law students at the present time. It is, "Ought we not to have a Ministry of Justice?" My Lords, "Justice", the all-Party organisation of lawyers, recently had a one-day conference entirely on, "Ought we not to have a Ministry of Justice?".

There is an article in the New Law Journal of February 11 headed, "Do we need a Ministry of Justice?" I am always asked, "Is it not a fact that every other Western democracy, including all our own old Dominions, has a Ministry of Justice?" And I say, "In the United States it is called the Justice Department, but I agree that in every other Western democracy, and in all our old Dominions there is a Ministry of Justice." Then they say, "If that is right it cannot be—can it?—as one or two lawyers say, that if we had a Ministry of Justice we should be halfway to a Police State?" I say, "No, I cannot say that I see any signs of a Police State in Denmark, New Zealand, or in the other Western democracies." But I do say that on balance, while I have no strong views about it, I think that I am against a Ministry of Justice, because although our system has grown up pragmatically there is a good deal to be said for the man who appoints judges being a different man from the man who controls the police and prisons, and is perhaps also responsible for prosecutions.

Then always comes the question to which I have no answer. In every other Western democracy is there not always one Minister who is responsible for the state of the law? Who is responsible for the slate of the law in this country? To this question, I can only say, "I do not know." Because really nobody knows. If it were a fact that the Lord Chancellor is responsible for our civil law and the Home Secretary for our criminal law, it might not be so bad; but the truth is that nothing is laid down, and nobody really knows. The only objection I have heard to having one Minister responsible for the state of the law is that this would not be practicable; because, taking, for example, a Housing Bill, surely the Minister of Housing must be responsible for housing policy. And all the statutory instruments of different Government Departments must be the responsibility of their Ministers. How therefore, could one Minister be responsible for the extent of our whole law?

I think that there are two answers to that. I remember that when I was on the Lord Chancellor's Committee on the Practice and Procedure of the Supreme Court, of which the late Lord Evershed was Chairman, we discovered that this was the only civilised country in the world in which a person who went to law in the High Court did not know in advance on which date his case was going to be heard. We were told by English lawyers that this was impossible. But we found that in Scotland there had only been two cases in five years on which litigants had not had their cases heard on the fixed date. We could not believe that something which had been found to be possible and practicable in every Western democracy was impossible in England. That, I think, is the first answer to the question, because in every other Western democracy there is a Minister who is responsible for the state of the law.

Secondly, it is said that housing policy must be decided by the Minister of Housing. In some countries the first draft of a Housing Bill will be prepared by the lawyers in the Ministry of Housing but cannot be introduced until it has been approved by the Ministry of Justice. Some countries, like France, go farther and a Bill has to be approved not only by the Ministry of Justice but also by the Conseil d'État.

Who is responsible for what part of the law is a thing at which I naturally looked very closely in the recent Government White Paper on the Reorganisation of Central Government. It says that Parliament can do anything but here we are not really in the ordinary Parliamentary sphere. At one time we used to suffer from an excess of Royal privilege. Now I think we suffer from an excess of Prime Ministerial privilege. What Minister does what is the jealously guarded right of the Prime Minister. My complaint is that no thought is ever given to this. We indulge in grandiose reorganisations of Government Departments, or of the machinery of Government, but do we ever think about who is to be responsible for the law? The only reference I can see to this in the White Paper is the statement that the new Ministry of Trade and Industry are going to be responsible for companies. Nothing else seems to have been considered.

Who, for example, is responsible for the state of our law on adoption? It might be said that it would be the Lord Chancellor, because it is civil law. But anyone who has occasion to go into this will tell us that, although theoretically it may be so, the Home Secretary says that this has to do with children, and he is the man who has the Children's Department. So our law of adoption, though it affects grown-ups even more than it affects the children, is his affair. Now the position according to the White Paper is that as child care is the responsibility of the Home Secretary in England, it will be transferred to the Secretary of State for Social Services when the main provisions of the 1970 Act come into force on January 1 next.

That may sound as though our law on adoption has now moved from being the responsibility of the Home Secretary to be that of the Secretary of State for Social Services. But the Act goes on to say: The Secretary of State for Wales will assume similar responsibility in Wales. I know that there is a separate law for Scotland, but so far there is only one law for England and Wales. Who is now responsible for the law of adoption in England and Wales? This is the sort of question which I am sure the noble and learned Lord on the Woolsack will answer, when he comes to reply to my Question, because it is a specific one; and we should know for what parts of our law Ministers really are or are not responsible.

The matter does not rest there, even with this Ministry. There are other Departments which have always appropriated to themselves responsibility for certain branches of the law. In the past, before we had the Law Commission, it may well have been that this did more good than harm. Then, when nobody else was interested in law reform, if we had a Government Department which took a fatherly interest in a particular branch of the law, that might be a good thing. But what is happening to-day is that while we are going ahead very well in those branches of the law for which the noble and learned Lord the Lord Chancellor is responsible, this is not happening in these other fields.

Take, for example, the Board of Trade, now the Department of Trade and Industry. The Board of Trade appears to be very jealous of the Lord Chancellor and the Law Commission. "That is ours. Hands off!", seems to be their attitude; but they do not do the job themselves. We badly need another Companies Act. I do not know when we are going to get it. That is the Board of Trade's responsibility.

I was on the Lord Chancellor's Committee in January, 1957—fourteen years ago—when we pointed out the many different ways in which our law of insurance was over-weighted in favour of insurance companies and against the insurer, and while we said that it was not for us to determine whether legislation was desirable, we set out what were the practical provisions which could be introduced into the law to remedy this and said that no legal difficulty would arise in their application. That was fourteen years ago. Nothing has happened. The Board of Trade say that they are responsible for insurance law.

They also say that they are responsible for bankruptcy law. What is the situation about bankruptcy law? Fourteen years ago, we had a Committee on Bankruptcy Law—the Blagden Committee—which came out with a good Report in July, 1957, with 50 recommendations about how to bring our bankruptcy law up to date. Nothing has happened. And I am sure that the Board of Trade would take umbrage if the noble and learned Lord the Lord Chancellor were to start talking about bankruptcy law, because they would say that that is their affair. They were asked recently whether they proposed to consider whether our bankruptcy law is all right and they said, "No; we have no need to do that. We have the Blagden Committee Report". But fourteen years have already gone by and, as I have said, nothing has happened.

The position in copyright is rather more obscure, but it appears from an Answer given in the other place that problems arising from the use of copyright material are studied by the National Council for Educational Technology, and others are to be discussed soon at a meeting"— in the Department of the Secretary of State for Education and Science— with representatives of the British Copyright Council."—[OFFICIAL REPORT, Commons, 5/3/71; cot. 540.] It is not perhaps surprising therefore that an honourable Member in the other place put down a Question to the Secretary of State for Education and Science about our copyright law. And the Answer he received was: Amendments to the law on copyright would be a matter for my right honourable friend, the Secretary of State for Trade and Industry.

Then, my Lords, there is the sale of goods. We were always going to have a further Sale of Goods Act. It does not in fact happen. We all know what the position has been about guarantees, and so forth. It is now some time since the Board of Trade had a report from the Law Commission on exemption clauses. Nothing has happened.

Another branch of the law for which the Board of Trade are responsible is our hall-marking laws. I think I referred to this in a debate a little time ago, and I will not go through it again. But what it comes to is that a Committee which sat in 1856 found that they were in an appalling mess, dating back to about the 14th century, absolutely incomprehensible, and really must be brought up to date. There was another Select Committee in 1879 which said exactly the same thing. Then the noble and learned Lord, Lord Denning, in the case of Westwood v. Cann in 1952, said: I would observe that in 1856 and in 1879 the Select Committee said that the law as to hall-marking was uncertain owing to the number of Statutes in which it was to be found, and they expressed the opinion that the consolidation and amendment of the law should be carried out without further delay. Now, 73 years later, in 1952, I may perhaps be permitted to express the same opinion.

What happened? Nothing happened, except that in 1959 another departmental committee, under the chairmanship of Sir Leonard Stone, took another look at hall-marking and reached what was by now hardly an original conclusion: that the numerous Statutes which touch upon hall-marking, the protection of the public against the flood of adulteration in its purchases of wrought gold and wrought silver, are so confused and obsolete as to be incapable of being patched up by amendment so as to form a workable and enforceable code. That Committee recommended the substitution of a consolidated statute in place of the existing confusion. Nothing has happened. It is now 114 years since the date of the first Committee. This is the responsibility of the Board of Trade. Something is in the wind, but this is simply because our EFTA partners said to us: "Would it not be a good idea if we all had the same hall-mark laws? These are ours. What are yours?" And ours are so confused that the Board of Trade do not tell them. So they are now, I believe, rushing around in circles; but this has gone on for 114 years.

One wants some general responsibility for the state of our law as a whole. Our insurance law is part of the law of contract. So of course is the sale of goods. Who then is in charge of our law of contract as a whole? The Law Commission Act, which Parliament passed, said in Section 3: It shall be the duty of each of the Commissions "— your Lordships will remember that there is a Law Commission for England and Wales, and the other is referred to in the Act of the Scottish Commission— to take and keep under review all the law with which they are respectively concerned"— that is, the whole of the law of England and Wales— with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments, and generally the simplification and modernisation of the law. Under that Act they submit their programmes first to the Government, who can disallow, but cannot say what they are to do. Then, when they make their Report, it does not matter whether it is in the field of criminal law or the civil law, every Report goes to the Lord Chancellor. I do not understand how that state of things and Parliament's clear intention can have survived into an era in which there are still other Government Departments which say: "Hands off. This is our perquisite." The noble Earl Lord Jellicoe, in this House on March 18 of this year—I apologise for not having given him notice of this but it is a relatively small point—said at col. 557 of the OFFICIAL REPORT: In reply to that supplementary question, I would also underline that Her Majesty's Government are engaged at present on a systematic review of all the functions of Government. If one of the functions of Government concerns who is responsible for the state of our law, I hope that that may be included.

My Lords, before sitting down, I want to mention one or two small points. I have not, of course, referred to Scotland. As is not infrequently the case, Scotland is in a much happier position, because the Secretary of State for Scotland is the Minister of Law, the Minister for Crime, the Minister of Housing and everything else. So they are in a very happy position.

Secondly, the noble and learned Lord the Lord Chancellor will no doubt agree that the person who is responsible for the Parliamentary draftsmen—and I believe that in the future a great deal will depend on this—is the First Lord of the Treasury who, because he is also the Prime Minister, and therefore has one or two other things to do, and does not know much about Parliamentary drafting, anyhow, is not, I should have thought, the most suitable head. There is a great shortage of Parliamentary draftsmen, whichever Party is in office. It is mainly because their natural head, I should have thought, was the Lord Chancellor. They really need somebody to take an interest in them and to see that their numbers are expanded. In Canada fairly recently they were having difficulties with a shortage of Parliamentary draftsmen, and a very able young Federal Minister of Justice, Mr. Turner, acted on it at once. He got three of the universities to include Parliamentary drafting in the law school. We are not the only people having these difficulties.

I wish the noble and learned Lord well in his reply, because I must frankly say that, although I know something about the law, having spent some time in it, when I am asked, as I frequently am, what Minister or Ministers are responsible for our law or for the different parts of our law, I have to say that I do not know the answer. This is the first time in legal history, so far as I know, that anybody will have been told. One assumes that the noble and learned Lord will tell us. Nobody will be more pleased than I if he can tell us that in the course of the review which the noble Earl, Lord Jellicoe, said that the Government were making into the functions of Government, it had been decided that in future the Lord Chancellor should have responsibility for the whole of our law.

5.58 p.m.

LORD STOW HILL

My Lords, I should like shortly to intervene in this debate. I am sure all your Lordships will agree with me in saying how much we enjoyed the speech of my noble and learned friend Lord Gardiner. While it was delightful to listen to, I thought it a little difficult to follow. But I did the best I could to try to resolve his propositions into categories, and it seemed to me that they came rather to this. First, he said—and he gave a number of examples which seemed to bear out what he said—that the division of responsibility was allocated as between different Departments of State on a rather illogical basis in some cases: because he dealt with comparatively few of the myriad responsibilities which are imposed upon different Government Departments. So far as that part of his argument goes, I should have thought that possibly your Lordships might draw the conclusion that he had established that it would be a good idea if there were some process of reallocation on a rather more logical basis in the limited number of cases to which he referred.

Then I tried to resolve into a single proposition what seemed to me to be the burden of the second part of his speech, which he coupled particularly with the name of the Board of Trade, as it used to be called. He gave examples, which seemed very convincing, that the Board of Trade had not taken adequate steps to implement a number of recommendations which went back, I think he said, so far as 114 years. If I may use Mark Antony's phrase: If it were so it were a grievous fault, and the President of the Board of Trade would have in another place "grievously answered it" at the hands of very angry honourable Members of the other place. I have no doubt that he has from time to time felt the animus of their resentment because of his shortcomings, to which my noble and learned friend referred.

Having followed the preliminaries upon which he based his conclusions, I go to the conclusions, the first of which was this: we ought to have a Minister who is responsible for the state of the law in general. May I spend one moment examining that? I personally do not accept that proposition. It seems to me that at the outset one should say to oneself: "What exactly did my noble and learned friend mean by the expression, the state of the law ' "? If he means the state of the law as it is in effect described in Section 3 of the Law Commissions Act 1965, which my noble and learned friend read out, clearly that is the responsibility of the noble and learned Lord the Lord Chancellor. Posterity will gratefully associate with the name of my noble and learned friend Lord Gardiner the 1965 Act, under which the two Law Commissions were set up. All in this House would recognise that under the direction of the previous occupant of the Woolsack, and the present occupant, they have done the most valuable work; they have taken many tremendous strides towards the achievement of the objective which is described in Section 3 of the Law Commissions Act, 1965. In that sense I accept at once not only that a single Minister; namely, the noble and learned Lord the Lord Chancellor should be, but I would add that he is by the express will of Parliament as enunciated in the Act of 1965, in terms made responsible for that aspect of the state of law. I am sure that the whole House will join with me in saying that we feel deeply grateful both to the present occupant and to the previous occupant of the Woolsack for what they have done in that respect.

I personally feel some hesitation in going beyond that in saying that a single Minister should be responsible for the state of the law in general. If I correctly caught the proposition as it fell from the lips of my noble and learned friend it was to this effect: every Departmental Minister when he proposes to place a measure, I suppose before Cabinet first and then, if he secures Cabinet approval, before Parliament afterwards, should go first to this Minister and ask his permission and approval for the measure which the Departmental Minister in question proposes to place before Cabinet. I can only say that that would be extremely inconvenient.

It is a public interest that the law should be clear, accessible, tidy, logical and comprehensible. It is an even more important public interest that Parliament, and Ministers in charge of departments, should be seen to be capable of dealing quickly and effectively with the successive problems which arise in the administration of the affairs of a great country like this one. Anything which put a clog upon the speedy and effective action of Departmental Ministers would be a mater of regret. Is there a need for it? If a Minister is dilatory he will soon find criticism of himself in another place, in this House and in the Press. He will be goaded to action. If he proposes for legislation a measure which cannot be justified it is unlikely that he will get it approved by Cabinet, and get members of the Cabinet to accept the collective responsibility which they do for all measures proposed to Parliament.

The noble and learned Lord on the Woolsack in the course of our earlier debate, in a very brief intervention, said that he would be able to assure my noble and learned friend that in a general sense it was the responsibility of the Lord Chancellor to see that the law does not make an ass of itself—I think that was the phrase that he used. He will no doubt explain, with his usual clarity, to your Lordships, exactly how far he meant to go. I wondered whether he meant to go further than preventing the law making an ass of itself in the sense implied under Section 3 of the Law Commissions Act. It would be very hard on the noble and learned Lord the Lord Chancellor if another Departmental Minister, via the Cabinet, introduced to Parliament a measure which was plainly nonsense, that the unfortunate Lord Chancellor should be regarded as being under some personal responsibility for that nonsense. I apprehended that the noble and learned Lord on the Woolsack did not mean to go quite so far as to say that he would be prepared to assume a responsibility of that sort. He no doubt shares that responsibility as a distinguished and influential member of the Cabinet, as all occupants of the Woolsack are. But surely he cannot be expected to be responsible in a particular personal sense for any nonsense which is perpetrated by a Departmental Minister which he succeeds in getting through Cabinet.

Therefore I would, with respect, ask the House not to accept the advice of my noble and learned friend that some particular Minister should be responsible for the form of the law in general, if by that my noble and learned friend means, as I think he does, to include the contents of the law, the way in which the law is framed in order to meet up to the particular problem to which it is directed. I should have thought that there was no real case for that, and that it would be a clog on the swiftness and effectiveness of government and Parliament which would not bring any corresponding advantage, having regard to the fact that Parliament's will is now being so effectively brought into action through the provisions of Section 3 of the Law Commissions Act 1965.

My noble and learned friend concluded his argument by submitting that it would be of advantage if the office of Parliamentary Counsel, instead of being under the direction of the Prime Minister, were placed under the direction of the Lord Chancellor. If I may respectfully say so, I would rather doubt it. Examples sometimes are of help in formulating arguments. I should like to take for that purpose as an example the Finance Acts. Perhaps this afternoon is a particularly appropriate time to mention that, especially on the part of one who does not yet know what the Budget has brought forth. I would imagine that the practice of this Administration is probably very similar to the practice of the previous Administrations in this respect.

The Chancellor of the Exchequer surely must be responsible, and have an immediate and direct responsibility, for the clauses of the Finance Bill that he introduces after he has introduced his Budget. Normally those clauses contain a number of anti-evasion provisions. A question which Parliament wishes to have answered with regard to each of those clauses is whether they are necessary, whether they are obscure and, because of their obscurity, whether they are oppressive; whether they entrench too violently upon what we regard as the traditional freedoms of action in this country. He will go, so far as any experience that I have had is concerned, for advice on that point to the Law Officers of the Crown, and will certainly expect that they will assist him when he presents his Bill to the other place in justifying any particular clause with regard to which a question of that sort may be raised.

The Law Officers work extremely closely with Parliamentary Counsel in that context. I should have thought that if one takes that Bill as an example it would be very inconvenient if the Law Officers of the Crown had, as it were, to ask the permission of the Lord Chancellor to use the services of Parliamentary Counsel; if they likewise had to ask permission before they could approach the Law Officers; and if the Chancellor of the Exchequer equally had to go to the Lord Chancellor and say, "May I please employ Parliamentary Counsel to draft my clauses? This is the form which they are to take and I hope you approve". I should have thought that that was a very inconvenient arrangement.

I should like to conclude my observations by putting forward one or two general propositions. It seems to me that my noble and learned friend did not give adequate place in our democratic arrangements to the functions of the Law Officers of the Crown, and in particular the Attorney General. The Attorney General is the principal legal adviser to the Government; he is the senior legal adviser. If the Government wish to know what are their responsibilities, for example, under the Simonstown Agreement it is the Law Officers of the Crown whom they consult. It is the opinion of the Law Officers of the Crown that has been published in particular in relation to the Simonstown Agreement. Should that advice turn out to be mistaken, it is the credit of the Law Officers of the Crown, and nobody else's, which in consequence is impaired.

It is in this democracy of ours of vital import that any legislation we pass should not unduly infringe upon the traditional liberties of the subject. Any Departmental Minister who introduces legislation with regard to which that reproach might be made will be very wise if, before he does so, he asks the opinion of the Law Officers of the Crown. In due course, when he gets before the other place, he almost certainly will want their help; and they are, I should have thought, regarded as being under a very special personal responsibility to ensure that legislation does not infringe in that particular respect.

The Attorney General for some forty years has never been a member of the Cabinet. Why? Because I should have thought it was considered essential in regard to any Attorney General—and I see in front of me a very distinguished former Attorney General, the noble and learned Viscount, Lord Dilhorne; I hope he agrees with me—to say that he could not possibly accept a seat in the Cabinet as Attorney General in circumstances in which it might be suspected against him that he possibly had been influenced by his colleagues in the Cabinet. Anybody who walks into the Law Officers' Department is, as a very first experience, I think, confronted with the question whether he has fully read and considered the Campbell case, and whether he will be certain to take the lessons of that case very fully to heart.

Therefore it seems to me that we have at present, without a Minister of Justice (and I cannot think what he would do in our Constitution), without a particular Minister acting as a kind of back-seat driver, and being expected to breathe down the neck of any Departmental Minister, what is in principle a satisfactory division of responsibility. The content of any Bill must be a matter for the Departmental Minister concerned. Whether it offends against basic civil liberties considerations must be a very special responsibility of the Law Officers. Whether it is obscure and, because of its obscurity, oppressive is again for the Attorney General and the Solicitor General.

We have all observed the very hard work, for example, of the present Solicitor General on the Industrial Relations Bill, about which, no doubt, in this House there will be acute conflicts of opinion expressed in a very short time. When the statute is on the Statute Book and the question arises whether the arrangement, because of the multiplicity of statutes, has become illogical; when the task is undertaken of making them simpler, more intelligible, more accessible, then we are directly within the scope of that very admirable Section 3 of the Law Commissions Act 1965. And the Law Commissions work directly under the jurisdiction of the Lord Chancellor.

My Lords, we have worked out that sort of balance after many centuries of experience. I am not particularly influenced when I listen to arguments of the kind to which we have listened about the experience of other democracies. Over the last sixty or seventy years this great democracy of ours has lived through strains that have led to the undoing of democracies in many other countries; and I should have thought we were very fortunate in having achieved the balance which we at present have.

VISCOUNT DILHORNE

My Lords, I have listened with interest to the noble and learned Lord, Lord Gardiner, and to the noble and learned Lord, Lord Stow Hill. I must join with Lord Gardiner—

LORD CHORLEY

My Lords, is the noble and learned Viscount asking a question or making a speech?

VISCOUNT DILHORNE

I am sorry, my Lords. I was going to make a speech. I have not seen a list, but I will certainly wait.

THE LORD CHANCELLOR

My Lords, I think that anybody who wants to is allowed to make a speech on an Unstarred Question. I speak subject to the better opinion of the noble Lord the Deputy Leader.

VISCOUNT DILHORNE

My Lords, I was not aware there was usually a list of speakers on an Unstarred Question.

LORD LLOYD OF HAMPSTEAD

My Lords, I am perfectly content that the noble and learned Viscount, Lord Dilhorne, should speak before me if he is anxious to do so, and I make way for him. I always listen with the utmost pleasure, if I may say so, to everything that falls from the noble and learned Viscount.

VISCOUNT DILHORNE

My Lords, I should not like to take the place of the noble Lord. As a matter of fact, I was not aware that there was a list, and that was no doubt my fault. I do not want to precede the noble Lord. If the noble Lord, and the noble Lord, Lord Chorley, have their names down on a list, as I see they have—I have just been handed a list—I think I had better speak after they have spoken.

6.16 p.m.

LORD LLOYD OF HAMPSTEAD

My Lords, I share the gratitude expressed by my noble friend Lord Stow Hill to the noble and learned Lord, Lord Gardiner, both for bringing this important issue before us this afternoon and also for the fascinating and eloquent way in which he introduced it. I also enjoyed greatly the extremely eloquent speech that has been made by my noble friend Lord Stow Hill, although I am bound to say I detected in it a slight tinge, at least, of complacency. I greatly admired the skill with which my noble and learned friend Lord Gardiner had framed his Question on this matter, which certainly reflects his remarkable skill, acquired at the Bar, of framing interrogatories. It is perhaps fortunate that in your Lordships' House such Questions do not have to be answered on Oath, in view of the peculiar difficulty of answering this Question, as Lord Gardiner has himself acknowledged.

It is a matter of some importance, surely, that we have not in our system any single Minister who has responsibility for the law in general. What we have in fact is what has sometimes been called a troika, and one which is not always, unfortunately, in step. We have the noble and learned Lord the Lord Chancellor, we have the Home Office, and we have the individual Departments. The hope that we had for some rationalisation of our law reform by the introduction of the Law Commissions Act 1965, far from resolving this question, has to a considerable degree served to underline the continuing nature of the problem.

I entirely agree with the view of my noble and learned friend Lord Gardiner that it is unwise to discuss this question in the context of a Ministry of Justice, because, as has been pointed out by Mr. V. Jackson, in his admirable book, The Machinery of Justice, that expression inevitably has a sinister sound to many English ears, and however little basis there may be for that, it seems unwise that we should try, if we feel some change is necessary, to do it in this particular form. It is exceedingly difficult to dispel the idea that in some way a Ministry of Justice is going to control the Judiciary, control the law, in an undesirable way which is antithetic to liberty. As none of us, of course, desires to produce that result, it is far better if we refrain from talking about a Ministry of Justice.

What I am sure we all wish to ensure is that the impetus for law reform and its unification is not lost because so many aspects of this problem are split up between a multitude of different Departments with relatively little intercommunication and no common responsibility. Of course, in this connection much needs to be said—my noble and learned friend Lord Gardiner has referred to the matter, and referred to it very cogently—about the role of the Home Office. My own inclination would be to say that, however anomalous it may be, so far as criminal law and penology are concerned there is an immense accumulation of experience and knowledge residing in that Department.

If I may say so, I think that on the whole it would be wise to leave that aspect of the law in their (I think) relatively safe hands, because successive Home Secretaries in recent years have tended to show a progressive view towards penology; and that even if one were contemplating some sort of general transfer of overall responsibility to the Lord Chancellor, or whatever Minister it might be, it would be better on the whole to treat the criminal law and penology as a separate sphere. A good deal could be done, and needs to be done, to define responsibilities more carefully. It may well be, of course, that in answer to this Question the noble and learned Lord who now sits on the Woolsack may be able to clear up these doubts and uncertainties which successive expert committees have suggested exist in this terra incognita between the Lord Chancellor's Department and the Home Office.

So far as other spheres of law reform are concerned, I think it is important to bear in mind that when one is dealing with individual departments one has two kinds of law to consider: there is legislation which departments produce which is of a purely departmental kind, which does not really have a law reform aspect and which is not really concerned with the law in general. For instance, if one takes as an example the Department of Trade and Industry, under the last Government there was passed the Films Act 1970. That was purely departmental legislation, and I should not think that in the ordinary way any Minister concerned with the overall development of the law would be much concerned with that kind of legislation.

On the other hand, legislation dealing with companies is a matter of the greatest importance to the general structure of our laws, and it is in this sort of field that it seems immensely important that we should have some Minister bearing an overall responsibility both for giving impetus to that kind of legislation and then ensuring that it is technically sound and properly integrated into the body of our law.

If I may say so, there seemed to me to be one deficiency in the argument of my noble friend Lord Stow Hill when he suggested that legislation of this kind could be produced by the relevant department and that it could be left to the Law Commission to clear up the mess afterwards, if there was a mess. Surely prevention is better than cure. What we really want is to be able to ensure, so far as humanly possible, that complex legislation of this kind is not thrown on the Statute Book in any sort of higgledy-piggledy order but that before it gets on the Statute Book it is carefully "vetted"—If I may use that word—by some Minister in the Department with an overall responsibility for the general structure of the law.

I do not want to speak at great length on this matter because it is only an Unstarred Question, as my noble and learned friend Lord Gardiner emphasised, and is not an occasion which calls for elaborate speeches. But in conclusion, I should like to emphasise this one point. It seems to me that one of the useful lessons that we can learn from the Ministries of Justice of many other countries is that such a Ministry contains a section which is concerned with the overall supervision of legislation that is passed through other departments. This does not necessarily mean, therefore, that the Ministry of Justice or the Lord Chancellor or whoever is exercising this function in, for instance, the sphere of company law, would necessarily concern himself with all the minutiae of that legislation from a departmental point of view. It may well be that the Department of Trade and Industry would play an important role in that matter. What one would like to see, however, is a very close liaison with the Minister in overall charge of legislation, and if such a Minister were the Lord Chancellor this would be singularly fitting in view of the development of the Law Commission, which is the body appropriate for considering reform.

In this context one might mention that when company legislation was proposed during the last Parliament the Law Commission was, I believe I am right in saying (and I shall be corrected if I am wrong), very largely by-passed over this legislation. Surely this underlines the unsatisfactory nature of the situation. Where you have the general law of companies being developed by new legislation you have a body like the Law Commission whose task is to see that overall the law develops in an appropriate way. If the Minister to whom the Law Commission are responsible—namely, the Lord Chancellor—had an overall supervision of all reforming legislation, he could ensure that, despite the departmental interest, legislation of that kind could be referred to the Law Commission, who would have an adequate opportunity to consider it; and if the Lord Chancellor had within his Department a section which was concerned with the form of the legislation and ensuring that it was properly integrated in the law as a whole, we should be making some substantial progress.

The fact is that our law, as we all know, is in an extraordinarily repulsive form. Anybody who sits, as I have the misfortune to do, on the Consolidation Committee and sees the form of legislation that comes before one and sees the strenuous attempts which are made to try to reduce this unwieldy bulk into some sort of satisfactory shape, realises that we shall never get abreast of this problem unless we try to cope with the legislation adequately before it becomes law instead of just sitting back in a complacent way and saying, "Well, never mind in what form it comes on to the Statute Book, we have this nice little body of five Law Commissioners; they can tidy it all up afterwards". The fact of the matter is that they are so enormously involved in trying to tidy up the past troubles that it will take centuries before they get round to the further mess which we are busily creating by this extremely unsystematic process.

Therefore I would urge, despite the eloquence of my noble friend Lord Stow Hill, that there is a vital problem here. It may be that the Lord Chancellor who, if one may say so without disrespect, is the "Lord High Everything" in our Constitution, may be exceedingly unwilling to accept any further duties, and this may create considerable departmental problems. It may well be that there would need to be some considerable expansion of his Department. But whatever the appropriate machinery may be, it seems to me, with all respect, that there is a serious gap in our legislative process here, and one which we can tackle only if we apply ourselves in the way that my noble and learned friend Lord Gardiner said, with his immense wealth of experience behind him—that is, in a very determined way to try to restructure the whole process.

6.30 p.m.

VISCOUNT DILHORNE

My Lords, the noble Lord, Lord Chorley, has kindly said that I may precede him, because I am in some difficulty later on. I am very grateful to him. I am grateful, too, to have the opportunity of following the noble Lord, Lord Lloyd of Hampstead, having heard his argument, because I should like to answer him about one matter. I was a Law Officer from 1951 to 1962 and then for a short time Lord Chancellor. If he thinks that there is not a great deal of trouble taken, not just by the Department but by other members of the Government, in relation to the terms of any Bill, I can assure him that he is entirely mistaken. It is true that a Department may be responsible for the preparation of a Bill; they will have Parliamentary counsel allotted to them; but before the Bill is ever presented to Parliament, to either House, it certainly will have been considered by the Law Officers and the Lord Chancellor, and by others as well. I, for one, should think it would be a very retrograde step if the lengthy process of preparing a Bill had to be even further prolonged by submission of that Bill to the Law Commission before its introduction to Parliament. I think it would not work and it really is not tolerable.

There is here a distinction between law reform, which means reform of the existing law, and the improvement of our process of making new law. The Law Commission is primarily concerned, I should have thought, with the reform of our existing law. I would question one part of the speech of the noble and learned Lord, Lord Stow Hill, when he seemed to suggest that the process of law reform had only really started under the present Lord Chancellor and his predecessor.

LORD STOW HILL

My Lords, I hope the noble and learned Viscount will not think that for a moment. Of course I did not mean to imply that, and if any words I used might seem to carry that connotation they are at once, and unreservedly, withdrawn.

VISCOUNT DILHORNE

My Lords, I am grateful to the noble Lord. One did not have very much time to do it, but Lord Kilmuir did manage to bring about—without a Law Commission, it is true—a great deal of law reform, and I think all Lord Chancellors have endeavoured to get what they could through the Parliamentary machine in the time at their disposal.

I agreed with many of the criticisms—who could fail to?—uttered by the noble and learned Lord, Lord Gardiner, and I may add one or two. I will come to those. His main proposition, as I saw it, was that Parliamentary counsel should be taken away from the Treasury and put under the Lord Chancellor. I agree with the noble Lord, Lord Stow Hill; I cannot see any advantage being gained by that at all. It does not, I think, matter under whose control they are. What does matter is how they do their job. And, of course, they are lent to different Departments as different Bills are produced. I think that works very well. It is very difficult to get good Parliamentary counsel—it may be that some more care and attention must be paid to that point—but I see no reason for transferring Parliamentary counsel to the Lord Chancellor's Department. I agree with the noble Lord, Lord Stow Hill, that that would be a retrograde step.

But there is a real problem here, and I think the House should be grateful to the noble and learned Lord, Lord Gardiner, for drawing attention to it. There is a great deal of lack of definition of the functions of various Departments, and there is also lack of some co-ordination between different Departments with regard to, not making new law, but considering the existing law. The noble and learned Lord, as Lord Chancellor, as indeed I had, had first-hand experience of the difficulties of knowing exactly where the Lord Chancellor's functions ended and the Home Secretary's began. Although in my time Lord Chancellors were responsible for the appointment of magistrates, I found, to my surprise, that the Home Office was exercising powers of selection of which magistrates should sit in juvenile courts, and I had a very considerable battle with the Home Office at that time, pointing out to them that it was quite wrong for them to appoint any magistrate to sit in any courts; that clearly was part of the Lord Chancellor's function.

I think there is a great deal to be said for the Home Office and the Lord Chancellor getting together to try to clarify the position. It would be a great mistake to have anything more of a Ministry of Justice than the Lord Chancellor's Department now is. It would be a great pity to have a Lord Chancellor's Department in any way responsible for prosecutions or matters of that sort. I do not mind the Home Office being responsible for criminal law, but I do think that when you get outside that field, in so far as that law does not fall within a broad province, say of the Ministry of Trade, legislation in relation to children, or industrial legislation, it ought to be for the Lord Chancellor to exercise the same sort of eye over it as he does over matrimonial legislation. I do not myself want to see powers in relation to a particular field taken away from a Department.

I think it is quite right that the Department of Trade should have responsibility for the Companies Act; it is quite right that pressure should be put upon them to pay attention to that, and to the bankruptcy laws and other such matters. But where I think a real difficulty arises is, for instance, where there is an investigation under a Companies Act, which may take a long time, with a disclosure at the end that there is good ground for supposing that there has been criminal conduct on the part of some of those involved. So much time has by then elapsed that it really becomes impossible to institute a prosecution. We in this country would not tolerate the institution of prosecution for a serious offence many years after the offence has been committed, but we are fast approaching a state when prosecutions are not instituted because of the delay that has occurred on account of the protracted investigations conducted by the Department of Trade. To find the answer to a problem of that sort there should be more co-ordination between the Departments, an endeavour to find a machinery whereby that delay can be short-circuited and avoided.

I would say—and I agree with the noble Lord here—that there are two defects under the present system. The first is that the line is not clear between the different Departments' responsibilities, and, secondly, even where it is clear, sometimes the responsibility of one Department reacts adversely upon the responsibility of another. What is needed is a committee, a small Cabinet committee if you like, to co-ordinate these matters and tackle these problems. I should not like to see the Lord Chancellor have a greater responsibility for the law than he now has. I think he has just about as much as any single man can shoulder properly. But what I should like to see, and this I am sure will happen while the noble and learned Lord, Lord Gardiner, is here, is continual stimulation of those Departments which have particular preserves and which perhaps have not been so active in the past as they might have been and as I hope they will be in the future.

6.39 p.m.

LORD CHORLEY

My Lords, I hope that the noble and learned Lord who has just resumed his seat will forgive me if I do not follow him in his interesting argument. I would like to cross swords with him over several of the points he has made, but time is getting rather short. It would really be to attempt to paint the lily to try to make a long speech in support of what my noble and learned friend Lord Gardiner has said in his comprehensive and admirable speech.

In a rapidly changing society, such as has existed in country since, I suppose, the Industrial Revolution, law reformers have to run very fast in order to keep up with the present situation; and if they do not run very fast indeed it appears very often, both to the general public and indeed to more progressive lawyers, that the law is at a standstill. Recently we have been running pretty fast, and under my noble and learned friend Lord Gardiner there was a quite exceptional burst of speed, of a kind which has not been seen since the middle years of the last century when, under a remarkable series of Lord Chancellors—Lord Brougham, Lord Westbury, and Lord Selborne, to mention only three—a remarkable number of projects were carried through to a successful conclusion. I suppose that those three were all radical politicians, although it is true to say that Lord Selborne started life as a Conservative (a Tory in those days) Member of another place, and after that moved well to the left. It is a little late to hope that the present noble and learned Lord, his successor, will move in that direction politically, although I must say that I have considerable hopes of him as a law reformer. So far, he has been living up to my hopes and expectations.

My noble and learned friend Lord Gardiner has reminded us how, by setting up the Law Commission, he has enabled very great improvements into the existing state of the law to be made. One could say quite a lot about that. He did not go on to remind us how, with the noble Lord, Lord Beeching and his Royal Commission, and the extraordinarily expeditious way in which he managed to get a Bill through Parliament, he completely refashioned the court system in the country, thereby emulating Lord Selborne's remarkable achievement at the centre in the 1860s and 1870s. That in itself, which the noble and learned Lord on the Woolsack is helping to carry through, is an achievement of which the importance has hardly yet come home to the general public. These are events which a law reformer who has been disappointed, like myself, in the earlier part of his career can well acclaim as being quite remarkable.

There is one other area which so far has not been covered, and it is a difficult area to describe. Although the noble and learned Lord managed to carry through that difficult task, it is at the centre (as was the case with Lord Selborne's difficulties, though it lies rather in Whitehall than in the Strand) that another problem arises: the problem of supervising and co-ordinating the internal work of the law itself, and the building up of the law and the law administration at the centre. It is to that, of course, that the noble and learned Lord has addressed his remarks this evening. In a way it is possibly a more intractable problem than the others to which I have referred.

There is one obvious part of this to which the noble and learned Lord directed a good deal of his attention—and it has been referred to by subsequent speakers. That is the problem of the relationship between the Lord Chancellor's Department and the Home Office. When my noble and learned friend Lord Gardiner was sitting on the Woolsack I thought he was extraordinarily careful to observe the protocol as between the Lord Chancellor and the Secretary of State at the Home Office. Now that he is free, he obviously can take up this matter. It is not the only matter which he has taken up in his speech this evening, because he has covered a very wide field, but it is at the heart of this problem, and I should like to devote the main part of my speech to it.

The point is that the Home Office is a police Department as well as a Justice Department, and I think that is wrong. A Department which is responsible for the police ought not also to be responsible in any way for the administration of justice. If it is, then people begin to distrust, and that is a bad thing. I think that has happened time after time, both in the past and in recent years. The job of the police is an essentially different one from that of the courts, and it clearly is not possible to bridge the gap. Efforts that are made very valiantly at the Home Office are mistaken in principle, and I think that in the end they do not have at all a good effect on the community. That is one of the reasons why Home Secretary after Home Secretary, with the best will in the world (and I entirely endorse what has been said about recent Home Secretaries; they have been wise, liberal-minded men, almost every one of them) has got himself involved in extremely difficult situations, both legally and politically.

The trouble arises historically. Before the police system of this country was organised—and that is a very recent event in the history of our country, going back only to the beginning of the last century—the Executive relied upon the justices of the peace as the main police organisation in the country. Justices of the peace were appointed in the Middle Ages by the King really as local police officers, and their job was to take up the scallywags and put them in the stocks, or deal with them in other ways. If the scallywags' activities were very serious and amounted to felonies, they were kept by the justices until the Red Judge came round, and he, with the assistance of a jury, tried them.

If anybody has any doubt that until very recently justices of the peace were really disguised police officers, let him read about Peterloo, or almost any of the disturbances in the eighteenth or early nineteenth century, in which the people always looked to the magistrates. There was not a police constable available to do the job, and the local magistrate in South Lancashire, at the time of Peterloo, was the man on the spot who brought in the militia. It is a pity that the noble and learned Lord, Lord Devlin, does not come and help us on these occasions, because he published a series of very interesting lectures in which he describes the evolution of the justices of the peace from a police officer into a judge—something that could not really happen until an effective police force had been organised.

Until very recently the magistrates' courts were called police courts, and it has been very difficult to eliminate that phrase. When I was a young barrister, and when my noble and learned friend was a young barrister, one went to a police court and not to a magistrates' court. We have been gradually able to get rid of that expression, but it typifies the reaction of the ordinary man in the street to the justice of the peace: that he was a disguised policeman. The policeman took you up and brought you before the magistrate; and the magistrate dealt with you on the spot—and very seldom found you were not guilty of the offence with which you were charged. That was all wrong, and it established a sort of heritage which a number of admirable Lord Chancellors—particularly, if I may say so, my noble and learned friend—have tried to change by giving the position of the justice of the peace a very different sort of standing in the community, establishing training and education for justices, and a much more rigorous selection of them. This has already produced a rather different outlook among the general public to the magistrates and the magistrates' courts at the present time.

But it will not be possible to get rid of all the old attitudes until the criminal justice side of the Home Office work is removed, whether to the Lord Chancellor's Department or to a Ministry of Justice. My noble and learned friend Lord Lloyd of Hampstead made quite a good point when he said that the Home Office has dealt with the punishment side, the police side, very well. But that is where the demarcation line comes. I am not proposing to take away responsibility for prisons, and so on, from the Home Office, but I am proposing to take away those parts where the overlap takes place. It is perfectly clear from what the noble and learned Viscount, Lord Dilhorne, my noble and learned friend Lord Gardiner, and most others who know about the Home Office have said, that there are very real difficulties there.

It seems to me that it is time this whole problem was properly looked into by somebody like the noble Lord, Lord Beeching, who can bring tremendous administrative knowledge to it, assisted perhaps by a small number of retired civil servants and a judge. As my noble and learned friend Lord Gardiner has pointed out, the problem is not peculiar to the position between the Lord Chancellor and the Home Office, but extends into other Departments. The Employment Department has a large area where essentially judicial work is being done, and from time to time questions are raised, both in another place and here, as to how it is being done.

There ought to be (and here I think that my noble and learned friend Lord Gardiner is absolutely right) some overriding supervising authority which keeps its fingers on the pulse of the administration of justice. It is time that, instead of having a debate every now and then about one or other of these problems, or, as we have done to-night, a short, rather limited debate on the general situation, a small working party was set up. I do not think that we necessarily want a Ministry of Justice, although I have always been in favour of one. It was interesting to note that the Chairman of the Law Commission, in his recent lectures on the work of the Commission, himself said that he was being driven to the conclusion that a Ministry of Justice, or something of that nature, was the only really satisfactory solution to the problems with which he had been struggling over the past few years.

So, my Lords, it seems to me that the time has now been reached when this matter should be scientifically investigated, in the same way as the general courts system was investigated by Lord Beeching and his Royal Commission. I hope that, as a result of this debate and as a result of the continuous pressure of my noble and learned friend Lord Gardiner, the Government will eventually do something of the sort and see to it that this very obvious sore spot in the legal administration of this country is healed.

6.53 p.m.

THE LORD CHANCELLOR

My Lords, I thought when I entered this Chamber this afternoon that I knew what I was going to say in answer to this debate. But after listening to one fascinating speech after another, exploring different corridors in the labyrinth, I am quite sure now that I do not know what I am going to say in answer to this debate. The speech of the noble and learned Lord, Lord Gardiner, was indeed a fascinating one. I have heard it often said by those who have experience of such things, that poachers make excellent gamekeepers. But this was an extraordinary example of a gamekeeper turned poacher. I have been Lord Chancellor for rather under a year. He was Lord Chancellor for seven years and, lo and behold! out of the cupboard he drew all the skeletons that had been there for the last century, including the wretched old hallmarking legislation on which I had to advise professionally last year. It so shocked me when I did so, that I wrote—I forget whether it was to the Lord Chancellor of the day or to his colleague in the Board of Trade, as I should more properly have done—to tell him how awful it was, and I received a temporising reply. I hope very much that this Government, with their new initiative and skill in legislative policy, will, before the end of this year even, have cleared up the hallmarking problem. At any rate, I am not without hopes of it, even though it is outside my own Department.

But the truth of the, matter, if I may pursue the gamekeeper analogy for a little, is that I was entirely mollified by the noble and learned Lord, not only by the kind things he said about me in my rather modest capacity, but also because, having turned poacher, he ultimately came to the conclusion that all shooting parties should be presided over by the gamekeeper alone. Indeed, at one time I thought that the gamekeeper himself should be the gun at every butt, banging down the pheasants as they flew overhead, but I do not think that is altogether right. I must now make a rather prim and proper remark about the Prime Minister being responsible for the machinery of Government, as the noble and learned Lord very well knows. I must not, therefore, transgress upon my right honourable friend's preserves—if that is the right phrase—nor must I breach the various conventions about my departmental friends' responsibilities.

But I should like to start, even at this late hour, by philosophising a little, because if you really want to get a clear answer to this question, I think you must ask yourself what you mean by "law". The question is: what Minister is responsible for law in England and Wales? I think you really have to ask yourself, first of all, what you mean by "law". Of course some of the earlier jurisprudence writers had rather crude and simplified ideas, such as the Command of the Sovereign and so forth. But the fact is that it means different things to different people and, above all, different things to the same people in different contexts. The first answer that I propose is that law is policy: past policy embodied in Statutes, present policy when it is viewed primarily as administration, future policy when it is concerned with projects which are not yet the law but which you want to make the law. From that point of view, of course, the Lord Chancellor cannot be responsible for the state of the law at any one time, nor can any other one Minister.

On the other hand, it can mean—and this is the second meaning to which I would draw the attention of the House—that series of rules which the courts apply in order to determine disputes between subject and subject, or between subject and the Crown or the local authority. It is that sense of law with which I think the Lord Chancellor is particularly concerned, and with which I think the noble and learned Lord who introduced this subject is particularly concerned. When I said much earlier in the afternoon, in a slightly facetious mood, that one of the Lord Chancellor's functions was to stop the law being a bigger ass than it otherwise would be, I meant law in that second sense. I would agree with the noble and learned Lord, Lord Gardiner, that there is a kind of residuary responsibility in the Lord Chancellor of the day—quite apart from the questions of policy involved—to look at proposed legislation, or actual legislation, or rules of law, to see whether, as applied in the courts to disputes between parties or between a party and authority, they make any kind of practical sense. I would go the whole way with the noble and learned Lord in that kind of theorising about the Lord Chancellor's function.

But in answer to the noble Lord, Lord Lloyd of Hampstead, I would say that this is not a purely departmental function of the Lord Chancellor. The defect, I thought, in his critique of the noble Lord, Lord Stow Hill, was that he overlooked almost entirely the working of the Cabinet and Committee system inside the Government. One is always supposed not to talk about these things, but I think that what I am about to say is sufficiently well known for it not really to breach any kind of rule to that effect. Almost every Government has two committees: one is called the Home Affairs Committee, which discusses proposed legislation from the point of view of policy; and the other is the Legislation Committee, which discusses the validity of legislation from the point of view of nuts and bolts. Certainly as regards the latter, I think almost every recent Government has put the Lord Chancellor on it. He could not fulfil that task alone. All the Departments concerned with the particular kind of legislation—and there are usually nine or ten round the table—in fact participate, and participate very fully; but I always think that the Lord Chancellor's main function on such a committee is to look at legislation from that point of view. Obviously, a great number of nonsenses get by, but on the whole a great number are caught in the net of scrutiny either by the Departments or by the Lord Chancellor's Department itself.

But it is not possible, I think, to go on to say that it follows from that that the Lord Chancellor ought to be responsible for law as such. Let me take a very simple example which has not been mentioned in the debate: the law of landlord and tenant. I think this is as good an example as any other of what you cannot do and what you ought not to try to do. From one point of view, from the point of view of the second definition that I proposed, the law of landlord and tenant is right up the street of the courts, and therefore very much at the heart of the thoughts of the Lord Chancellor's Office about law. It is the bread and butter of the county courts; it is the foundation of agricultural holdings. Leasehold reform is a hot political subject, and in the higher reaches it is a subject of extraordinary and complex learning about which both academic and practising lawyers make their names and produce books of about 2,000 pages long.

It is well within the function of the Law Commission, because the Law Commission is currently trying to reduce this enormous jungle to at any rate a fairly well cultivated forest. In the meantime, nobody, I think, could suggest, or could sensibly suggest, that the Lord Chancellor should suddenly take over responsibility for the law of landlord and tenant. It is the heart of social policy—the security of tenants; the state of repairs; the provision of houses. It cannot be dissociated from social policy: it must be the responsibility of what was the Ministry of Housing and is now part of the Department of the Environment. There is no other way of handling it.

Obviously, a Lord Chancellor who is worth his salt is going to insist on being consulted about a reform of the Rent Acts or an extension of the fair rents legislation or security of tenure, either in agriculture or in housing, or in the renewal of leases in the case of business premises. All these things must come within the purview of a Lord Chancellor who takes an active interest in law reform or social policy. But it cannot, in the nature of things, be his Departmental responsibility.

I go further than that. What was mentioned was companies. Now company law, again, is just such a subject. It is right up the Lord Chancellor's street from one point of view. There is a court called the Companies Court, which is part of the Chancery Division. The birth, the life, the relationship between the parts of a company are lawyers' law of the most complex and professional kind. But it is also part of the economic policy of the country; and I do not think for a moment that my Department should take over from the Board of Trade (or, as it now is, the Department of Trade and Industry) responsibility for the Companies Act. I do not think it would make any other kind of sense.

One noble Lord who spoke pointed out that the same kind of consideration applies to the Finance Act itself, and to fiscal law. Quite obviously, an enormous part of the Bar and of the solicitors' profession revolves around tax provisions, which have no doubt been changed this afternoon while we were innocently discussing forests. Fiscal law is some of the most technical law we have, but nobody could take it away from the Treasury; it is part of the economic policy of the country. And, viewed as policy, it is no good suggesting that the Lord Chancellor should occupy all the butts in the shoot and should call himself the Minister of Law, or something of that kind.

Of course, this does not in the least make nonsense of what the noble and learned Lord, Lord Gardiner, was saying, because there are, I think, a number of very considerable problems about the demarcation of various Departments; but I think by far the most serious and by far the most complex are those which relate to the relationship between the Lord Chancellor and the Home Office, between the Lord Chancellor and the Attorney and Solicitor General and between the Home Office and the Department of Trade and Industry in relation to company frauds—that kind of thing. I do not want to give a definite answer to-night about that; I think it is something which has not yet been solved.

But I should like to put up a number of propositions. The first is that prosecutions are for the prosecuting authorities alone, culminating in the Attorney General and responsibility to Parliament; that only the Attorney General should be responsible for prosecutions at the highest level; and that in deciding issues relating to them he should be immune from political pressure, whether that comes from the Home Office, from the Lord Chancellor, from the Prime Minister of the day or from anyone else.

I think one noble Lord referred to the Campbell case, in which my father, when he was in Opposition, played quite a distinguished part. But the prosecuting side ought to be hived off from other responsibilities. At this late hour, I do not want to go into the question of a Ministry of Justice. The trouble is that a Ministry of Justice means different things to different people. But if a Ministry of Justice means, as it does in some countries, that the same Ministerial body should be responsible for prosecuting and for penal treatment and for the administration of the courts, I am against it. That I am quite clear about; and I would stick to our method of treatment.

The second proposition I would put up is that penal treatment ought to be something for the Home Office and not for the Lord Chancellor or the Attorney General. I would go much further, as a matter of fact, than the present law actually goes, because although a trial judge can very often be asked usefully to give his recollection of a case some years after the case has been tried, and very often can give some very useful guidance, I really do not think he can know at the time he passes sentence what ultimately ought to become of a man. The important thing he has got to do is to make up his mind, first of all whether he is to give a custodial sentence at all—this seems to me the fundamental question of principle—and, secondly, if he is going to give a custodial sentence, what length it should be. But it does not mean in the least that that is what really ought to happen to the man. Penal treatment ought to be a matter, I think, for the Home Office, and for the Home Office alone, and in that field the Home Secretary should be as immune from interference as other people.

Thirdly, the management of the civil courts, their staff, their judiciary, their accommodation, their procedural law and all questions of law not bespoken in the sense I have meant hitherto by the administrative Departments arc, I think, matters very much for the Lord Chancellor; and the Courts Bill which is now before Parliament will bring both that and to some extent the constitution and management of the criminal courts and their judiciary much more closely in relation to the Lord Chancellor's Department than they have been hitherto. I think we may indeed get a little more sense and a little less delay when that has been done. But that of course raises the question of the future. And, quite obviously, when the Lord Chancellor's Department has digested the Courts Bill and reduced the machinery to working order after it has been implemented, a question must arise for decision as to the future of the magistrates' courts. I think that is probably fairly high on the agenda. There is not a Government policy at the moment on the subject, but it is obvious that the Government will have to take decisions.

There will be a demand for it to be a function of central Government, and if it is a function of central Government there will be a discussion whether it should be under the Lord Chancellor or the Home Office; and there will also be a demand that it should be left with the new units of local government. The only certain thing is that local government reform, when it comes, will necessitate decisions of one sort or another because, as the present units of local government are being altered fundamentally by the proposals we were discussing yesterday, the magistrates' courts cannot be left as they are. I have had in the last few days strong opinions in each one of three quite separate senses expressed by different people. It is something which this House will have to consider and about which the Government will have to make a decision.

One argument which carries some weight with me is the limited civil jurisdiction of magistrates' courts. I noticed that the noble and learned Lord referred to the matrimonial jurisdiction. I regard this as a not altogether happy feature of our law at the present time. Again, no Government has as yet defined their answer to it, but I do not regard the present system as a happy one. There are historical and logical reasons why divorce should be under one Ministerial hat, and the matrimonial jurisdiction of the summary jurisdiction courts under another, but I do not think the situation in which we have trial of these cases in the magistrates' courts is a happy one. My own prejudice is in favour of family courts, properly presided over by a county court judge but with lay members. But here we are talking in the realm of future policy, on which no Minister is entitled to speak with authority.

The noble and learned Viscount, Lord Dilhorne, raised another very important question—the length of time it takes to try a fraud case at the Old Bailey. He said that this country would never tolerate many years' delay between the commission of an offence and the trial of it. My recollection—I stand subject to correction—is that in the Bloom case 10 years elapsed between the facts which were the subject of the prosecution and arraignment at the Old Bailey. In my opinion, a situation such as that is wholly unacceptable.

What is not so clear is whether the delay is due to the allocation of Ministerial responsibility, as the noble and learned Lord, Lord Gardiner thought, to the Board of Trade, or whether it was due to the complicated process itself and to the actual constitution of our criminal law. My own belief is that there is a great deal in the view that the delay in company frauds can be traced, at least in part, to the complication of our rules of evidence and to the fact that once the investigation takes place under the Companies Act the Department of Trade have more or less got to start again and bring a prosecution in the ordinary way through the prosecuting authorities. That, again, is, so to speak, on the agenda; we cannot decide it to-night. Obviously, if a change were made it would involve a considerable change in the make-up of both Departments primarily concerned. The only thing that is certain is that it would not be the Lord Chancellor's Department in either event.

Then there is the great question to which a number of noble Lords have adverted; that is, the line of demarcation between the Home Secretary and the Lord Chancellor about responsibility for criminal law itself. I do not find this an easy question and I do not think it is one about which I can be entirely frank with the House. I must have my own mental reservations about what I say. Obviously, it is a question which disturbs Lord Chancellors. The noble Lord, Lord Gardiner, was Lord Chancellor for seven years and he put up with the status quo. I do not know how long I shall be Lord Chancellor—maybe I shall have to put up with the status quo, too. Anyway we neither of us can reproach the other if it is not absolutely perfect. The only thing which I think I can say at this juncture is that I do not think it is demonstrated that the relative lack of coherence about our criminal law and procedure is due to the division of responsibility between the Home Office and the Lord Chancellor. If you remember the awful agony we went through in the House of Commons in the last Parliament over majority jury verdicts, when it was entirely clear that that was a Bill brought forward by the Home Secretary of the day, I think you begin to see that really the great barrier to criminal law reform in this country is the immense conservatism of the British public and of the House of Commons—and particularly of the lawyers in the House of Commons— whenever it involves tinkering with our judicial institutions. The change to majority verdicts was minimal and it has gone through without a hitch after it was enacted, but if you had seen my honourable and learned friends in the other place agonising their consciences, turning first in one direction and then three months later in the other, and the tremendous expression that this was subverting our fundamental liberties, you would see how difficult it was.

LORD AIREDALE

My Lords, the agony was not confined to the other place, I can assure you.

THE LORD CHANCELLOR

The noble Lord is better informed about this than I at that particular epoch of time. If you want, for instance, to reduce the period of time which it takes to try a long fraud or company fraud, I do not believe Parliament is ever going to do that until it has faced the question of what sort of tribunal you want to try that kind of offence. I do not think it is going to do it on the present system at all. I do not think it is a question of Departmental responsibility; it is a question of facing some rather hard decisions about procedural law in the criminal courts. Whether the Lord Chancellor could do better at it than the Home Secretary, I do not venture to say. Some Home Secretaries are better at this sort of thing than some Lord Chancellors. But I think that, basically, it is a question of persuading the British public that something needs to be done.

These are almost my last words because I have already taken up too much time of the House. The point is that law reform in this sense, in the field of the criminal law, will involve questions of policy and not questions of departmental responsibility alone. I believe that we have the best system of law in the world in one sense, or in two or three senses. In the first place we have an absolutely incorruptible Judiciary independent of politics, and a profession with very high standards of professional honour. In the second place, however much we may complain about the law's delays—and many of these complaints are only too well founded—the law's delays in this country are infinitely less serious than in almost any other, whether they pursue the Continental or the American system.

But when it comes to looking at the jungle of legislation, of legal rules and procedural rules with which we are saddled particularly in the field of criminal law, which is probably the least reformed of all, I would accept the description of it given, I think, by the noble Lord, Lord Stow Hill, who said that it is presented in a repulsive form. In that field I am sure that what needs to be done is for the public to take an interest in it and to face some rather difficult and possibly rather radical decisions about criminal law and procedure. I do not think it will be done by taking the responsibility away from the Home Secretary and giving it to the Lord Chancellor or vice versa, or by reallocation between the Board of Trade and the police. I think it will be done by making people realise that we have to take criminal law reform rather seriously.

My Lords, I am afraid that I have taken a long time. I should like again to thank the noble Lords who have taken part in the debate, though I am sure that I have not given a conclusive answer to many problems.