HL Deb 21 May 1982 vol 430 cc927-35

2.5 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I have it in command from Her Majesty The Queen to acquaint the House that Her Majesty, having been informed of the purport of the Administration of Justice Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read a third time.— (The Lord Chancellor.)

On Question, Bill read a third time.

The Lord Chancellor moved Amendment No. 1: Page 5, line 27, after ("account") insert ("(together with any other matter that appears to the court to be relevant to the action)").

The noble and learned Lord said: My Lords, may I speak to—but move separately—Amendment No. 4 at the same time. Amendment No. 4 is only the Northern Ireland version of Amendment No. 1. Amendments Nos. 1 and 4 are intended to give effect to a promise I made to the noble and learned Lord, Lord Elwyn-Jones. He was a little concerned at my first shot at meeting the requirements of the common law wife, as she is called, in fatal accidents cases. He thought that the first attempt I made would cause the courts to concentrate too much on the lack of security of tenure. When it came to debate, I think that we were not very far apart. This is intended to give effect to the common ground. I beg to move.

Lord Elwyn-Jones

My Lords, I am grateful to the noble and learned Lord for having met the suggestions that were made. As it now stands, the provision of Clause 3(4) that, in dealing with the claim for dependency of the common law wife, there shall be taken into account the fact that the dependant had no enforceable right to financial support by the deceased as a result of their living together, while accurate as a matter of law, was little stark. It might lead an unsympathetic judge—although I am not conceding for a moment that there is such a creature—to give a merely token grant to the dependant in those circumstances. I am most grateful that the language that I have suggested has been more or less adopted and slightly improved upon.

On Question, amendment agreed to.

Clause 70 [Commencement]:

The Lord Chancellor moved Amendment No. 2: Page 41, line 11, leave out from ("operation") to end of line 12 and insert ("on 1st January 1983.").

The noble and learned Lord said: My Lords, it will be remembered that at the Report stage my noble friend Lord Renton drew attention to the somewhat complicated commencement provisions of what was then Clause 68 (now Clause 70) of the Bill. I undertook to take the amendment back with a view to simplification. I am afraid that I have not been able to go very far. This amendment is the result of inquiries I have made.

The basic reasons I gave for the complex commencement provisions are correct. There is a great deal of rule-making to be done. This involves not merely a drafting exercise but often lengthy periods of consultation. In other cases, administrative arrangements have to be made and it is not possible to give with any accuracy a forecast when these will be concluded. Therefore, the scope of simplification is somewhat limited. I accept that it would be convenient for practitioners and others to know that many of the substantive provisions of the Bill, including most of the provisions on damages and wills, will come into force on a particular day.

The period of three months which is in the present text can mean that the provisions come into operation in the middle of a week or at some other rather inconvenient time. On reflection, I think 1st January 1983 is both better and clearer. I hope that the House will agree that the amendment should be made. We cannot predict whether the amendment will mean that the provisions will be in force sooner or later than they otherwise would have been. But I think that it would be unwise on my part to select a date before the beginning of next year.

It will be remembered that my noble friend Lord Colville of Culross also raised a most interesting point about the commencement provisions of this and other Bills. I think that I had better write to him about that; I am afraid it will take rather a long letter. I do not think I should use Hansard as a means of communicating with him as it is not really relevant to the amendment. I beg to move.

Lord Renton

I find myself in the sad situation of being able to thank my noble and learned friend only for the thought and attention that he has given to this very complex matter. I do not propose to address your Lordships in reply to my noble friend at this moment. it will be seen that I have an amendment down. I have been doing my best to help, and any remarks that I have to make will be better made when we come to that amendment.

On Question, amendment agreed to.

2.12 p.m.

Lord Renton moved Amendment No. 3: Leave out Clause 70 and insert the following new clause—


70.—(1) The following provisions of this Act shall come into operation at the end of the period of 6 weeks from the date on which it is passed—

  1. (a) sections 1 to 5;
  2. (b) sections 7 to 14;
  3. (c) sections 17 to 22;
  4. (d) sections 30 to 32 and section 36;
  5. (e) sections 49 to 53;
  6. (f) sections 55, 56, 58 and 59;
  7. (g) sections 60 and 61;
  8. (h) sections 62, 64 and 66;
  9. (j) sections 67 (other than subsection (8) thereof), 68, 70, 71 and 72.

(2) The remaining provisions of this Act shall come into operation at the end of the period of 6 months from the date on which it is passed.").

The noble Lord said: Your Lordships will see this amendment simplifies, clarifies and also shortens Clause 70 of the Bill. It would overcome, if it were workable, most of the problems regarding commencement which we discussed at Report Stage. Your Lordships will see that I divide the Bill into those provisions which will come into operation six weeks from the date on which it is passed and the remainder six months after that date.

May I begin with my first subsection in this new clause? It includes three groups of clauses which I suggest need not be long delayed in being brought into operation. It provides that they shall come into operation six weeks after the Bill is passed. The first group are those clauses which are already mentioned in subsection (10) of Clause 70 in the Bill as it stands and which would, under the Bill as it stands, come into operation on the day it is passed.

Noble Lords may well ask: why wait for six weeks? The answer is that, when a Bill has been passed which makes amendments especially to the statute law, it is desirable to give the printers sufficient time to get the Bill printed and the editors and annotators of the various works upon which the users of statutes rely sufficient time to bring the amendments to the notice of the users of statutes. Therefore, there is an advantage on an occasion like this in having a six weeks' interval, anyway. That is why I have suggested that those clauses should be brought into operation after six weeks.

I should mention in passing that the groups of clauses to which I refer are not those to which the Public BillOffice have so rightly put (a), (b), (c), et cetera, in the amendment, and, indeed, they are not in numerical sequence. My second group are those clauses which are at present covered in the Bill in subsection (11) of Clause 70 and will come into operation on 1st January 1983 as a result of the amendment just moved and carried by my noble and learned friend on the Woolsack.

Discovering which provisions of the Bill were covered by subsection (11) was, I found, a somewhat elaborate process. It is a process which practitioners would be spared if my subsection (1) were accepted; and the various clauses have been, I hope, accurately set out.

The third group are Clauses 12 and 14(2), which are mentioned in paragraphs (a) and (b) of subsection (4) of Clause 70 as it stands. Under that subsection they would have to be the subject of a commencement order by the Secretary of State, but, on examining them closely, I do no see any need to wait for that. Therefore, we have the position that those various clauses and, where necessary, the schedules to which they refer would all come into operation at the same time, six weeks after Royal Assent—a great advantage and a great simplification in clarity.

I must come clean with your Lordships with regard to subsection (2), because it seemed to me, when I was drafting this, that six months might be sufficient for all the administrative arrangements and rules of court to be completed. But, alas! I am told that owing to consultations which these days take place—consultations with the two branches of the profession as well as with the judiciary—and owing to the need to allow ample time for making rules of court, these various administrative matters and the drafting and passing of rules of court could not all be completed within six months. Therefore, I have to concede that my subsection (2) is not suitable.

Nevertheless, I ask my noble and learned friend the Lord Chancellor to consider there being moved in another placed an amendment to replace Clause 70 by a clause which would incorporate subsection (1) of my new clause on the Marshalled List today and which would introduce some more simple provision to cover the first eight subsections of Clause 70, as it stands. I do not believe it to be beyond the wit of the Lord Chancellor and those advising him to do something along those lines, and I am certain that the users of statutes would be deeply grateful if that could be done. I beg to move.

The Lord Chancellor

My Lords, we discussed this at somewhat considerable length, certainly on Report, and I am sorry that I have not convinced my noble friend, either on Report or in my remarks on Amendment No. 2, that I really have gone as far as I can in helping him towards a simplification of this clause. But as I have now explained my reasons twice, I do not think I can improve them by explaining them a third time.

This is rather an usual Bill but, with respect, I think that my noble friend has begun it from the wrong end and, having firmly taken hold of the wrong end of the stick, he now continues to hold on to it firmly and thinks that he is assisting the practitioners thereby. This is not simply a question of draftsmanship. Obviously, his clause looks much cleaner than mine, and it is much cleaner than mine. He starts from the idea that it must look clean on the face of the statute book and, as he knows, I normally agree with his immense industry and his determined efforts to make the statute book an easy and attractive book to read, and for practitioners to use.

But the provisions of this Bill are immensely complex and, once one has accepted that it is not simply a question of draftsmanship, one finds oneself in the kind of position that I tried to explain on Report; that is to say, that the clauses fit themselves into a number of different groups, some of which require the use of rule-making powers, some of which require different commencement provisions in Scotland and Northern Ireland from what they do in England and Wales and some of which require administrative arrangements which will effectively demand different periods as between one another for their commencement. This is an inherent difficulty in the Bill.

Once one has grasped that, one then has to go back to the draftsman and what he tells you is, in effect, what I have been trying to explain to my noble friend, that this is not a question of turning the Bill into English, because that he could do in a variety of different ways, all of which might be simpler than what he has already done. He has to go back to departments and ask them what are the operational requirements of particular parts of the Bill, and he then has to translate that into English. So that, from the draftsman's point of view, you do not start by sitting down at a desk and trying to make a Bill a clean-looking document. You start from the position of a Minister who has to ask the draftsman to put into effect what are the requirements of different departments of Government for quite heterogeneous provisions of the Bill. This is really the nub of the problem as between my noble friend and myself.

I can only now give examples of the kind of problem I have in mind by referring to one or two objections to my noble friend's clause as it stands. For instance, a period of six weeks has been chosen for the provisions which are appropriate for early commencement. The Government prefer a fixed date. If there were to be such a period of time, six weeks is probably on the short side. We originally went in for three months, as I explained in my previous remarks on Amendment No. 2. From that point of view, six weeks is too short and two months would have been running it a bit fine, but would seem more desirable, in any event, so that practitioners might have time to assimilate changes. There would also be no risk of printing delays, which are of uncertain duration from time to time, leading to the Act being in force before copies were available.

However, even if one goes back on my desire to have a fixed date, subsection (1) could not be accepted, without further consultation. My noble friend has included provisions—for instance, Section 12 and Section 14(2)—in his subsection (1) which are subject to a Scottish commencement order. That will require rule-making, whereas ours will not. It is not thought therefore that the rules could be made in the time available, even though my noble friend thinks that it would be available.

The period of six months following Royal Assent is also, I am advised, unrealistic, having regard to the provisions of the Bill. The main point about having a commencement order provision is that it is impossible to predict when the relevant provisions can come into force when there are unquantifiable factors at work. The most important of these factors is to consult, primarily on the making of rules, and I am sorry to say that this process of consultation has, perhaps inevitably, become increasingly lengthy in recent years.

The Lord Chancellor's Department has been subject to criticism by the Bar, for instance, that insufficient time is allowed. In these circumstances, if I started to have a fixed period for commencement, I feel that I should get into trouble. And particularly would this be the case for the implementation of the conventions affecting wills. The conventions affecting wills affect the three different jurisdictions, and different rules and different administrative arrangements would be required in each of them. Six months may well be too short a period for this purpose and, indeed, for other parts of the Bill where extensive consultation would be required.

I am very appreciative of my noble friend in his constant interest in the interpretation and drafting of statutes, because he has done an immense power of good not only in his report, which has now become a best seller again since we managed to have a second edition, but also in his constant attention to the form of Bills in this House. But on this occasion I cannot go along this road further than I have done. In the circumstances, I hope my noble friend will accept, with my compliments and goodwill, my rather negative response to his draftsmanship, which in itself, as draftsmanship, is unexceptionable.

Lord Elwyn-Jones

My Lords, I hope that I shall not be thought to be ganging up in the team against the constant efforts of the noble Lord, Lord Renton, in this field where he has shown great persistence—and rightly so. If my noble and learned friend Lord Gardiner were here, he would no doubt give examples of legislation which has been allowed to lie dormant and would, no doubt, belabour the noble and learned Lord, as he used to belabour me. It is right that these great powers of the state should be belaboured in this way lest that which Parliament wishes to happen does not come to pass. Therefore, I fully sympathise with and, indeed, welcome his continuing efforts, but it does not entirely surprise me that he has not had much more success with the present sitter upon the Woolsack than he had with his immediate predecessor.

Seriously, though, there is value in this prodding. I know from experience that the obtaining of rules is not easy. It is not through any bloody-mindedness on the part of departments, because of the pressure of work—and sometimes the complexity. This, as the noble and learned Lord has said, is a highly heterogeneous measure, and I suspect that in his heart the noble Lord, Lord Renton, will sympathise with the difficulties of the noble and learned Lord in not being able to go the whole way.

Lord Renton

My Lords, in seeking leave to withdraw the amendment, I wonder whether I may make it clear that I should be the last person to enter into a tug of war between myself on the one hand and the Lord Chancellor and his predecessor on the other. I am not quite so daring or so foolish as to do that. But may I have the leave of the House to make three brief comments? First, I concede, as I did before, that the Lord Chancellor is going to have his problems of administration and rule-making, and obviously one should not ignore them. Secondly, having conceded that point, I think it is rather unfortunate that we could not have, perhaps in a little schedule, a list of those clauses which are going to come into operation on the fixed date or another fixed date, or even on a date within so long after the Bill is passed, instead of people having to put metaphorical wet towels around their heads, as I did the night before last, in order to find out which of the provisions of the Bill are to be the subject of orders or special arrangements and which are merely to be mopped up by the last subsection of Clause 70. I have made that attempt and I hope that what I have done will not, in the long run, have been wasted, because it is something worth doing. All right, if my noble and learned friend the Lord Chancellor does not like Clause 12 and Clause 14 being included in subsection (1), let him have them out, but there is a strong case for the rest.

My only other point, and I raise it with great temerity, is that I am sorry to have to say that I do not believe that my noble and learned friend the Lord Chancellor, whom we all respect so enormously, made a valid point when talking about the fixed date. The date of Royal Assent will become a fixed date and as soon as that happens, a date three months after Royal Assent or six months after Royal Assent will equally be fixed dates and completely ascertainable. So, with respect, I do not accept that part of the argument. However, I am so grateful to my noble and learned friend, not only for the full explanations he has given of his point of view but also for his very kind encouragement, which is more than I deserve. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 [Damages for personal injuries etc.—Northern Ireland]:

The Lord Chancellor moved Amendment No. 4: Page 55, line 42, after ("account") insert ("(together with any other matter that appears to the court to be relevant to the action)").

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

An amendment (privilege) made.

2.32 p.m.

The Lord Chancellor

My Lords, in moving as I am about to do, that the Bill do now pass, I think that I owe a particular thank you to the House, in all its sections, for the co-operation I have had during the conduct of this Bill. It could never have got as far as it has if people had not understood my particular difficulties and tried to help me in them. In a heterogeneous law reform Bill of this kind, they have helped me by not pressing amendments which would have introduced elements of controversy, and I in turn have tried to reciprocate by responding to criticism where it has been made. I think that as a result of the criticisms to which the Bill has been subjected from time to time, it is now going to another place in a more acceptable form than that in which I introduced it some time ago. Having said that thank you, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(The Lord Chancellor.)

Lord Hacking

My Lords, before the noble and learned Lord, Lord Elwyn-Jones, wishes this Bill to pass this House and to go to another place, I would just like to raise one matter with the noble and learned Lord the Lord Chancellor. As the noble and learned Lord knows, I took an interest in the interest provisions—and I apologise for duplicating that word—in the Bill, which are contained in Schedule 1. I was urging upon the noble and learned Lord that consideration should be given to compound interest. At this stage I wish to do no more than to press that upon the noble and learned Lord.

There is one question that I should like to leave with the noble and learned Lord before the Bill leaves this House, and that is the effect of these new provisions upon commercial arbitrations in London. As the House will know, it is the duty of an arbitrator under an arbitration governed by English law, to apply the English common law, and in so far as it is applicable, to apply English statutory law. The difficulty which an arbitrator will face in seeking to apply statutory law here is that in the terms of Schedule 1 the power to award interest is limited to proceedings before the High Court. If that is right, then the arbitrator will not be able to give effect to that clause. If that is again the correct position, the arbitrator will have to fall back upon English common law and fall back upon a case of 1893, if my memory is right, the London, Chatham and Dover Railway case, which prohibits the award of damages under common law. So there is, I believe, some concern about this. The noble and learned Lord himself wrote a textbook, which is still used, and indeed was quoted in the Techno-Impex case, Hogg on Arbitration, so he has some expertise in this field. I would be very grateful if he could consider this point, because I believe it to be of some substance and some concern.

Lord Elwyn-Jones

My Lords, before we hear the noble and learned Lord dilating on arbitration, which I cannot wait to hear, I would like to express our good wishes for the future progress of this most valuable Bill. It is a reform Bill which has drawn upon the contributions of the Law Commission and of the other law reform bodies, and is a useful measure. On the whole, it is a humane Bill which will benefit those who, under the present law are disadvantaged, like the illegitimate child, or the person we dealt with in the first amendments, who, in the event of the death of the person with whom she has been living in a settled relationship, may suffer disaster, but who will, at least, now be entitled to claim her part of whatever estate may exist.

My Lords, many valuable ideas and proposals for further reform have been raised in the course of the debate. On the whole, we adhered to the request and advice of the noble and learned Lord the Chancellor that we should not seek to present too many new controversial measures. I was a little surprised when he accused me of bulldozing him at one stage, a venture which I would never dare to embark upon in respect of the noble and learned Lord anyway. So not every wish has been satisfied in the course of the discussion, but, as the noble and learned Lord has said, I think the Bill has been improved since it has gone through its course in the House. Some of the proposals that have been raised by noble Lords will no doubt be the subject of future legislation. The avenues of law reform in a changing society must never be closed. I have little doubt also that some of the matters that were raised in your Lordships' House may be raised again in another place. But this is a valuable Bill, and I greatly hope that its progress will not be unduly impeded in another place.

The Lord Chancellor

My Lords, I am very grateful to the noble and learned Lord. As regards the point raised from the Cross-Benches by the noble Lord, Lord Hacking, I will take on board his point and see what I can do about it and whether anything requires to be done. I quite understand the point he is making. He will of course notice that paragraph 2 of the schedule shows that the interest provisions are not entirely confined to the High Court, but it does not necessarily invalidate his point. Therefore, I will consider it and see what can be done. I imagine that if anything requires to be done it can be done by a perfectly simple verbal amendment. Perhaps he would leave it at that for the moment.

On Question, Bill passed, and sent to the Commons.