Law Commission

Lord Beecham Excerpts

Monday 12th May 2014 Grand Committee

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, my noble friend on the Front Bench is well aware that I am no lawyer. He and indeed other Members of the Committee may therefore wonder why I have trespassed into this rather specialist area of the legal world—the role of the Law Commission. The answer is that a few years ago, when the new procedure devised to enable your Lordships’ House to consider Law Commission Bills not only faster but more effectively was introduced, I had the privilege of serving on the first Bill so dealt with, the Perpetuities and Accumulations Bill, which gave me first-hand knowledge of the valuable work done by the Law Commission.

When I talked to staff at the Law Commission, in a rather charmingly self-effacing, self-deprecating way they described their work as being “care and maintenance”. That gravely underestimates the value of what they do. For example, their work on the Consumer Insurance (Disclosure and Representations) Act—another Bill Committee on which I served—made significant improvements to the position of the man in the street seeking to obtain insurance. It restricted the ability of insurers to ask open-ended questions of the “Are there any other questions and facts that the insurer ought to be aware of” variety. The Bill Committee received evidence of cases where this had been much abused. An individual was refused treatment for his cancer on his private health insurance because he had failed to reveal to the insurer that he had visited his doctor—about flu, not cancer—a few weeks before his cancer was diagnosed.

I argue that the Law Commission does valuable work in improving equality of arms, in clarifying aspects of historical legislation that modern developments have made obscure, and generally—in that rather overused modern phrase—in helping to make the law fit for purpose. Of course, there are limitations to the work of the Law Commission. It must not and cannot trespass into party-political issues. Notwithstanding that, it provides a light-touch, swift way of keeping our law up to date. I was therefore distressed to learn that a number of Law Commission Bills that are, so to speak, on the runway do not appear to be being cleared for take-off. I want to focus on three of those now.

The first is a report on easements and covenants, published in June 2011—nearly three years ago. Inter alia, restrictions on landowners creating easements and covenants with variable impacts restrict their ability to obtain mortgage finance and so impact the development of large estates. The Bill would ease those challenges.

The second is an insurance contract law Bill, which is essentially a commercial follow-up to the consumer insurance Act that I referred to earlier. The Bill is particularly important for small businesses, such as a shop or a small family metal fabricating business, where the owners’ personal assets are co-mingled with those of the commercial operation. There is a practical reason for urgency on that Bill, in that Mr David Hertzell—the Law Commissioner responsible for all the work done on that Bill to date—retires in December this year. It would surely be an unnecessary own goal to lose his experience and expertise.

The third is a third parties (rights against insurers) Bill. A version of it received Royal Assent in 2010 but, for reasons that I have not been able to ascertain, it has never been implemented. It now needs to be updated by a short supplemental Bill. The Act’s purpose is to protect the insured where the insurer has gone out of business. It therefore has particular relevance for “long tail” claims, such as those relating to asbestosis.

The Government could, if they chose, quickly take forward that group of Bills. Are those Bills going to have the regulars of the saloon bar of the Dog and Duck dancing on the tables? No, they are not, but they are individually going to make a significant difference in their specialist areas. In particular, I venture the thought that your Lordships’ House is not going to be overburdened with legislation in the next Session. Therefore, what better way to use the House’s time and expertise than in considering these important but non-contentious pieces of legislation? I look forward to hearing, at least in outline, how my noble friend sees progress being made on these and indeed other Law Commission Bills.

A repetition of what happened to the Law Commission’s Bill on termination of tenancies for tenant default would surely be unacceptable. It was originally published by the Law Commission on 31 October 2006—seven and a half years ago. To date, no response to it has been forthcoming, from this or the previous Government. Governments are of course entitled to decline to take forward particular pieces of legislation but it is surely unacceptable not to respond to the Law Commission’s work. The Bill would do much to help businesses to stay in business by removing the perverse incentive that currently exists for landlords to change the locks on properties as early as possible. Sadly, the commission has concluded that since, as I explained, more than seven and a half years have now elapsed since the first consultation, the Bill is out of time. Consultation will have to begin again and all the public funds so far expended have been wasted.

For the remainder of my remarks, I will look forward at two Law Commission Bills currently in consultation. The first is the regulation of health and social care Bill. I have a shrewd suspicion that my noble friend Lord Kirkwood and the noble Lord, Lord Patel, will wish to pursue this in more detail. Health and social care professional regulation is currently provided under the provisions of the Medical Act 1983 and a series of parallel Acts for other health professions. In the words of the General Medical Council, the Medical Act is,

“outdated, complex, highly prescriptive and difficult to change. This makes it difficult to innovate and respond quickly and efficiently to society’s expectations in a rapidly changing healthcare environment”.

This Law Commission Bill is different from most of those that have gone before in that it is long and complex. Most Law Commission Bills are quite slim but this Bill is telephone directory-thick, and of course it has the capacity to become party political. The Bill is in danger of falling between various stools. Nevertheless, for the reasons that I have already outlined, it is a badly needed Bill in order to keep our regulatory framework up to date and so improve the protection of patients. So where is this Bill now? Is it still a Law Commission Bill or will it become a Department of Health Bill? If so far it is neither, when will the decision be made as to which legislative process is to be adopted?

I now turn to an area in which I have long taken an interest—the world of charities. Charities and voluntary groups do wonderful work across our civil society—in particular, tackling those hard-to-reach groups that present particularly intractable and challenging social problems. To their great credit, the Government recognise the role of the sector, but the charity sector is much impeded by an outdated legal structure, notably the fact that the current law makes no distinction between the duties of a trustee of an ordinary trust as opposed to a charitable one. This, linked to the complications and complexities of what is known as permanent endowment, has significantly impeded the development of social investment and the consequent growth of charities that could benefit from the availability of finance so provided. A Law Commission consultation paper on these issues has recently been published and the consultation period closes on 18 June. I hope that my noble friend will be able to tell me that the Government propose to move forward swiftly to the implementation phase thereafter.

Before I conclude, I have one further point. The Lord Chancellor produces an annual report on the work of the Law Commission. A little bird told me that the report for last year was to be published last Thursday, 8 May. I have searched on the parliamentary website for it without success. Fearing that this only revealed my technological incompetence, I sought the help of the Printed Paper Office, also to no avail. I should be grateful if my noble friend could confirm its whereabouts.

[Lord Beecham (Lab)]

I have read it.

[Lord Hodgson of Astley Abbotts]

The noble Lord, Lord Beecham, is clearly more expert than I am at this. Half an hour ago, the Printed Paper Office told me that it did not have a copy. I now know its whereabouts. I thought that it might be published with a view to trying to spike my guns, but there we are. I look forward to the pleasure of reading it in due course.

I have argued that the Law Commission does valuable work that is far too valuable to be left to moulder on a Whitehall shelf. Proposals are awaiting implementation and the Government should use time in the next Session to bring these forward. I recognise that I have asked my noble friend a number of detailed questions, although I hope that I gave his office at least an outline of the lines that I proposed to follow. I would be perfectly happy if he were minded to write to me and Members of the Committee in reply.

What I am looking for is a general sense of urgency and commitment. Someone once described a Minister’s job as being a mixture of bomb disposal and Dyno-Rod. I want to be reassured this afternoon that my noble friend is the man from Dyno-Rod.

--- Later in debate ---

[Lord Beecham]

My Lords, I commend and support the noble Lords, Lord Kirkwood and Lord Patel, for their urging of the Government to proceed with the important legislation that they have described to the Committee in this debate. I will speak more generally about the work of the Law Commission. I plead guilty to technological ineptitude of a high order, but I was nevertheless able to download the report that was published, as the noble Lord, Lord Hodgson, said, last Thursday and able to obtain a hard copy this morning, so I have a slight advantage over the noble Lord in the ineptitude stakes when it comes to this debate.

It was interesting to read the Report on the Implementation of Law Commission Proposals. It is an annual report published by the Ministry of Justice, and it finds the Lord Chancellor in splendid Candide mode. He reports in his foreword that new procedures were introduced in 2009 and have,

“reduced the time and resources required for a non controversial Law Commission Bill to pass through Parliament”.

He refers to the Government’s “improved record on implementation” during the year and claims that there has been,

“significant progress on implementing the Commission’s proposals”.

He holds,

“the excellent work of the Law Commission in very high regard”,

and says that,

“the progress we have made during this past year demonstrates the continued relevance and resilience of the Commission’s work”.

Well, no doubt it does, but it would be more persuasive of the Secretary of State and the Lord Chancellor if in fact some of the long-outstanding proposals made by the commission had been activated during that time, or indeed an even longer period of time. After all, as we have heard, a number of proposed Bills have lain around for some considerable time. There has been the electronic communications code Bill, referred to in paragraph 45 of the report, which was published in February 2013 and to which apparently a response is indicated by the end of 2014. That means it will be nearly two years before someone in Government gets around to responding. Then there is the public services ombudsman Bill, referred to on page 49, which was published in 2011 and to which a response is apparently to be made available this summer. If a local authority took three years to respond to something, the Local Government Ombudsman would be rather critical of what little progress had been made.

The noble Lord, Lord Hodgson, referred to the Bill about easements. That is not a matter likely to inflame public opinion or, I suspect, cause a great deal of division among Members of either House. Yet, as he pointed out, it was published in 2011 and a response is apparently due—I do not know whether the Minister or his advisers can tell us exactly when, but it is some time this year. Certainly, that is another three-year period. It is even worse for the High Court criminal procedures Bill, which was put forward in 2010. At page 55 we learn that a response will be made in the summer of 2014. That is a four-year gap.

As the noble Lord, Lord Hodgson, rightly pointed out, there is the important termination of tenancies for tenant default Bill, which has been around for, as he said, seven and a half years. It is fair to say that the previous Government talked about doing something and did not get around to doing it, but it is four years on even since those days. It is interesting that in the 2013 implementation report, the Government stated that they had “discussed the proposals” and were,

“continuing discussions with the Commission”,

in relation to commercial tenancies. Those were referred to especially by the noble Lord, Lord Kirkwood. It will be interesting to learn if the Minister is able to update us today or subsequently on just how far those discussions have gone.

I have a closer interest in another aspect, which is private tenancies. A year ago, the Government were saying that they were also considering whether improvements could be made to the evictions procedure in the residential sector. Before Mr Grant Shapps—or Michael Green, as he is otherwise known—begins to accuse the Government of Venezuelan tendencies in respect of private rented property, perhaps the Minister will indicate whether the Government are seriously looking at this issue. They have been rather dismissive of proposals made by the Labour Party about elements of security of tenure, yet at least a year ago they were talking about looking seriously at precisely those issues.

In addition to those matters, there are still a number of outstanding matters in which the Government have apparently abandoned any prospect of taking Bills forward. With regard to the participating in crime Bill in May 2007, the cohabitation Bill in July 2007 and the conspiracy and attempts Bill in December 2009, the Government have indicated that they have no intention of taking up those recommendations for reform during the current Parliament. So that is one complete Parliament—one and a half, in two cases—gone without any action being taken, with no good explanation why the Government have come to that conclusion.

[Lord Hodgson of Astley Abbotts]

I had conversations with the Law Commission about where we were on these various issues. In two of the cases that the noble Lord has mentioned, the commission was concerned that they would get it into the arena of party-political warfare and concluded that it was not suitable to proceed further. That was the commission’s conclusion, not the Government’s. It is not a fair accusation that the Government have not acted; the Law Commission itself felt that these were not the right areas for it to be involved in.

[Lord Beecham]

The noble Lord may be right in respect of bringing stuff forward at the last minute in a five-year Parliament, but years have gone by. It cannot be said that political considerations would have been particularly relevant two or three years ago on matters that by that time had already been outstanding for four or five years. If these matters had been political, they would not have been included in the Law Commission’s programme in the first place or indeed agreed by the Government, because the Government agree these things. On the timing of an eventual Bill, I take the noble Lord’s point—it would perhaps be inappropriate to do that in the run-up to an election—but we have no indication at all of why the Government decided not to proceed with these Bills.

There are a couple of other Bills where apparently some sort of conclusion may be expected. There is a remedies against public authorities Bill, which celebrates its fourth birthday in 10 or 12 days’ time, on which the ministry committed to providing by Easter 2014 a complete analysis of the results of a pilot scheme. Are the Government ready to pronounce upon those results and, therefore, their intentions regarding that Bill? The other Bill to which there was a commitment to provide a response during the summer is a High Court jurisdiction in criminal cases Bill, which is now nearly three years old. Will we in fact get a response this summer, and is it possible for what I suspect will be such highly technical matters to be brought forward during the dog days of this Parliament—although, frankly, it does not look as though there will be much else to do? Then, as I said, there is the public services ombudsman Bill, to which a response was expected from the Cabinet Office, not the Ministry of Justice, by Easter. I am not aware that any such response has been in the public domain; again, perhaps, if not today then subsequently, we might find out.

All this raises questions not about how the commission works—it is doing its work—but about how that work is received and dealt with at the government end. It was interesting to read the triennial review of the Law Commission on this subject. Paragraph 43 asserts:

“The Law Commission faces many difficult challenges at the moment. It is currently developing its 12th Programme of Law Reform in an uncertain climate. The Protocol governing the Commission’s work provides that before approving the inclusion of a project in the overall programme the Lord Chancellor will expect the relevant Minister to give an undertaking that there is a serious intention to take forward law reform in this area”.

Touching on the point made by the noble Lord, Lord Hodgson, it then asserts:

“With the timescale for the 12th Programme spanning the next General Election, the Commission and Ministers will be making decisions in a context where there is a great deal of uncertainty about whether the incoming Government will support any project”.

That raises two points. First, in respect of matters that cannot be concluded in this Parliament, will the Government facilitate discussions between the Opposition and the commission about what a future Government might do? I ask that particularly in the light of recent decisions by the Prime Minister not to facilitate discussions between the Civil Service and the Opposition until much later this year—much closer to a general election than has been indicated in the past. As noble Lords will understand, I have very strong objections to that of a political kind. However, with Law Commission Bills we are not talking about highly controversial political matters anyway. I cannot see that discussions would be at all embarrassing to the Government; these are not government policies that will be under review. I cannot see any difficulty in facilitating a discussion between the Opposition and the commission about the commission’s own agenda. It would be helpful to an incoming Government, which I hope to see—and which noble Lords opposite hope not to see—or for any future Opposition to have that kind of relationship with the commission, so that the whole process can be accelerated and the Law Commission does not have to start from scratch.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

I thank the noble Lord for giving way. Did the party opposite avail the Conservative Party of such an opportunity when they were in power?

[Lord Beecham]

I have no idea, but I am not bound by every decision, right or wrong, made by the previous Government. I hope that they did. I might equally ask, did the noble Lord’s party ask for such a facility? I assume he does not know that either. Let us start from a clean sheet, and suggest that it is an innovation that would be worth pursuing, whatever the Government of the day. It is not a political issue: there is nothing between us politically in this agenda.

The second thing sits rather oddly with the following paragraph of the triennial review report:

“The continuing pressures on public finances will add to these challenges”.

I wonder why that should be the case, unless the commission’s manpower has been reduced, or the capacity within Government departments to deal with it has been reduced. For the most part, these are not expenditure-related Bills. The report goes on:

“This has brought to the fore the need to clarify the Commission’s funding model so that clear principles are established. To live within its means the Commission will need to be flexible and agile and will have to make difficult choices about the projects it takes on”.

Yes, but I repeat: is the financing a real issue? I have spoken for 13 minutes; I shall be very quick now.

My last point is that the Lord Chancellor currently produces a report on behalf of the Government as a whole. There does not seem to be a proper connection between the relevant departments and the Ministry of Justice in the course of the consideration of implementing these programmes. It seems to me to be necessary for there to be a single body, and it may well be the MoJ, to oversee the whole process from the government side. That is where the delays seem to occur. There may or may not be good reasons for them but no one on the government side seems to be taking responsibility for the overall programme. If they did that, we might not have the disappointment that has been voiced by other noble Lords today, and we might have a better realisation of the commission’s objectives, which the Government certainly share, in principle.

[Lord Brooke of Sutton Mandeville (Con)]

If the Lord Chairman will allow me, may I ask a question before the noble Lord, Lord Beecham, sits down? It looks as though he would be prepared to answer one. I volunteered in the Chamber when the new arrangements came in—I think the noble Lord was by then in your Lordships’ House. When my brother was chairman of the Law Commission, he made considerable progress by the conversations he had with the shadow Law Officers in what was then the Labour Government. I am not in any way seeking inside information, but I would be interested to know whether that route was being pursued today in the same way that it successfully was in those days.

[Lord Beecham]

That is really the point that I was making about the commission. I confess that I cannot say what approaches my colleagues in the other place have made as shadow Law Officers, and I do not think that the Minister would know either. I will certainly look at that from my party’s perspective.

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[Lord Beecham]

I did not raise the issue of rent control; I was talking specifically about security of tenure.

[Lord Faulks]

There is a complete answer to the concerns which the noble Lord was raising; perhaps I will not indulge myself by going into it now. Suffice it to say that the whole question is extremely difficult. I hope that he will accept that we operate continuously in a challenging economic environment. We have made significant progress in implementing the commission’s proposals. This Government, as, I am sure, does the party opposite, hold the Law Commission in very high regard. We continue to work with constructively with it. We have made great progress and can demonstrate by what has happened and what continues to happen the continued relevance and resilience of the commission’s work.