Law Commission

Lord Kirkwood of Kirkhope Excerpts

Monday 12th May 2014 Grand Committee

[Lord Kirkwood of Kirkhope (LD)]

My Lords, it is a great pleasure to follow my noble friend Lord Hodgson of Astley Abbotts, and this is an important debate. I start by declaring an interest: I am currently chair of the trustees of the General Medical Council’s superannuation scheme. That might give a clue as to what I shall be talking about in the course of my brief remarks.

My noble friend Lord Hodgson has done the Grand Committee a great favour by tabling this Question for Short Debate. It is an important subject for the reasons that he described, but the timing of acquiring it is particularly valuable. It makes me think that we talk about the need to find ways to get adequate scrutiny for medical and other regulators, but actually the Ministry of Justice should have regular accountability sessions to Parliament. A Question for Short Debate such as the one this afternoon is an excellent example of that. It is something we should do annually because it is an important part of Parliament’s work carefully to scrutinise the invaluable work that the Law Commissions collectively, throughout the legislatures in the United Kingdom, do. They are of valuable assistance not just to Parliament but to us as individual legislators. My noble friend Lord Hodgson gets high marks for bringing this forward, and we should think about doing it more regularly in future.

I cheated; I spoke to the Law Commission and asked it where its annual report was, and it very kindly sent me a link, so I have had a chance, which my noble friend has not yet had, to look at that report. You would have to acknowledge that a fair amount of progress has been made. There is the influence that the Law Commission had on the Care Bill, to name but one, which is a massive piece of legislation and has taken up a lot of parliamentary time. That is an example of how the process should and can be used.

The Ministry of Justice deserves some credit for what has been achieved but I agree with my noble friend: there is emerging concern about the three pieces of legislation outlined in the annual report. If we can learn more about what is in the ministerial mind of the Ministry of Justice for those three pieces of legislation, that will be extremely valuable.

I want to make a point about time in Parliament. Although the value of the Law Commission is special, it is obviously no use whatever unless it can have adequate parliamentary time. My noble friend is right to say that there are two avenues into Parliament: the specialist procedure and the generality of proposals adopted by government departments are both available. He mentioned this in passing: I think that people will be puzzled by the excuse from time immemorial from business managers in Parliament—I used to be a member of the usual channels in the other place at an earlier stage of my parliamentary career, and business managers on the government side are always saying this—that they are strapped for time, and they would love to be able to help but they cannot because they do not have the appropriate slots. Ordinary people would be puzzled by that right now because parliamentary recesses, particularly this year, are more frequent and for a longer duration than in my experience they have been in the recent past.

My first question is, if the Ministry of Justice and the Law Commission are working closely together, why the Ministry of Justice is not knocking on the door of the business managers more regularly, saying, “If we’ve got a little bit more latitude in the business in front of the House, surely we can find a slot for some of this work”. I am sure that that must create a huge amount of frustration. The value of the Law Commissions throughout the jurisdictions in the United Kingdom is immense in the expertise that they make available to Parliament. Although my noble friend is right to guard against getting the Law Commissions involved in parliamentary or political controversy, the work that they do, the consultations that they carry out and the standing that they have with their interlocutors produce a quality of consultation that White Papers and Green Papers perhaps do not because they are necessarily promoted by government departments. The Law Commissioners must be very frustrated that they spend time on these measures and then find, as my noble friend reported, that some Bills are left languishing for seven and a half years. We have to work harder to find ways of getting parliamentary time for this important work.

In passing, I point out what we all know: the Queen’s Speech that we are looking forward to after the forthcoming Prorogation will contain—because they always do—a provision for other measures being laid before Parliament. That provision always gives some scope for Law Commission proposals and I do not think that we have been as assiduous and robust as we should have been in taking advantage of it. Indeed, we should be saying to the Law Commissions throughout the United Kingdom that over a five-year Parliament we will certainly guarantee them some time. There should be some understanding that there will be a bit of time for the special procedure and for government Bills. If the Law Commission sees fit to spend time giving careful consideration to some of these proposals for public care and maintenance and other revisions of our body of law, then the least we can do politically is to give it a better idea of what time will be available for that.

As my noble friend anticipated, I want to talk briefly about the case for early inclusion of the regulation of healthcare professionals in the upcoming Queen’s Speech. I want to put a single question to my noble friend on the Front Bench to which I do not know the answer. I do not know to what extent the Ministry of Justice has leverage with the usual channels—in my experience, not many people have leverage with the usual channels except the usual channels themselves. However, there must be some way for the Ministry of Justice to say, whether formally or informally, that it supports a piece of legislation. This is a substantial piece of legislation. It has 250-plus clauses, so fitting it into one parliamentary Session would be a tight fit, particularly in the next Session. We know when the election is going to be but I think that it will be an unusual, and perhaps an unusually unpredictable, space as far as parliamentary time is concerned.

I think that to go into the merits of the proposal would be technically out of order, but the need for it is great. I served for four years as a GMC member until last year, and enjoyed the experience. I even read distinguished reports written by some of our colleagues. In particular, the report by the noble Lord, Lord Patel, on the regulation of medical education was a very important piece of work, which I enjoyed. However, the one thing that I learnt, if I learnt anything, was that the Medical Act 1983 is no longer fit for purpose; it is fragmented, it is not suitable and it does not begin to deal adequately with nine different regulatory medical bodies, 32 professions and 1.44 million professionals. It is all about patient safety.

There is a point that I would make to my noble friend in seeking his assistance in getting some leverage for this measure to be included in the Queen’s Speech as either a draft or a full-blown Bill. My spies tell me that the worry in the Government is that health will be too tricky an issue in an election year. However, I think that patient protection is very important and, although contentious, if it were adopted by a department, it would be a departmental Bill and could become part of the political give and take. I think that such a Bill would be well received. It would certainly be treated very seriously here in the House of Lords, and there is the expertise in this House to do the measure justice. With that, I ask my noble friend to think very carefully. If he does have any influence with the usual channels, then if this is not in the Queen’s Speech there should at least be something that indicates what it is going to happen to it. The alternative is that this massively valuable work will be lost. The Queen’s Speech after the upcoming one will be in a very difficult set of political circumstances so we have to grasp the moment now, and we need his help to do so. I hope that he can help the Grand Committee by giving us that assurance today.

--- Later in debate ---

[Lord Faulks]

My Lords, I am aware of the limited time I have been given. The noble Lord, Lord Beecham, has somewhat exceeded his time. He properly asked me a number of questions, as have other noble Lords. I will do my best in the limited time to answer as many of them as possible, but I am sure that noble Lords will appreciate that time does not allow me to give as much detail as I would otherwise have liked.

I begin by thanking my noble friend Lord Hodgson, who describes himself as no lawyer, but he is quite right to bring this matter to the attention of your Lordships’ House and he has performed a valuable service in so doing.

The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and to recommend reform where it is needed. The aim of the commission is to ensure that the law is fair, modern, simple and as cost-effective as possible. I speak from my own experience that, in decades gone by, the Law Commission would produce valuable reports but, sadly, often little was done with them because there was not sufficient political will, time, or whatever to bring some of its sensible suggestions into force.

However, in the past few years, the Law Commission, in collaboration with the Ministry of Justice, has engaged in a major exercise to enhance its profile within Whitehall and to increase the level of implementation of its work. Elements of that include the introduction of the new procedure, to which we have had reference, in your Lordships’ House for the consideration of non-controversial Law Commission Bills; a statutory duty on the Lord Chancellor to report to Parliament on implementation of Law Commission work—that is perhaps a partial answer to a point made by the noble Lord, Lord Kirkwood; and a statutory protocol on the relationship between the Law Commission and government departments. Those actions have resulted in a more efficient and streamlined way of working for the commission. As much was recognised in the recent triennial review undertaken in respect of the Law Commission, which was reported to this House. The review identified a number of areas of particularly good practice by the Law Commission and its sponsor team at the Ministry of Justice. It commended the open and transparent approach to law reform and policy-making as an exemplar of open policy-making.

When the commission examines a particular area of law, it first establishes the scope of its work in conjunction with the relevant government department. It then consults on existing law and on proposals for change. It makes a report to the Lord Chancellor or the relevant Minister with recommendations and reasons. The report may—and often does—include a draft Bill giving effect to the commission’s recommendations. The Bills are referred to as Law Commission Bills.

Since the new procedure was put in place in 2010, six Bills have been through the Law Commission Bill procedure. As your Lordships will appreciate, there are practical reasons for a limit to the number of Bills that can go through the procedure in a Session, but as and when opportunities have arisen, Bills have been taken forward using that special procedure.

It is perhaps important also to stress that we use what might be described as the normal procedure wherever possible to take forward the commission’s recommendations. For example, most of the recommendations in the Contempt of Court—Juror Misconduct and Internet Publications report were included in the Criminal Justice and Courts Bill introduced in Parliament in February 2014, and which is part of a carryover Bill, which will be considered by your Lordships’ House during the summer or perhaps in the autumn.

The special procedure has helped to clear the previous backlog and significantly reduce delays. Bills that have benefited from this new procedure include the Trusts (Capital and Income) Act 2013—the noble Lord, Lord Beecham, will be familiar with that—the Consumer Insurance (Disclosure and Representations) Act 2012, with which my noble friend Lord Hodgson will be familiar, the Third Parties (Rights Against Insurers) Act 2010, the Perpetuities and Accumulations Act 2009, referred to by my noble friend, the Inheritance and Trustees Powers Bill; and the Partnerships (Prosecution) (Scotland) Act. With the exception of the Inheritance and Trustees’ Powers Bill, which is awaiting Royal Assent, all are now Acts and have made important changes to the effectiveness, efficiency and quality of the law.

In March 2010, the Lord Chancellor and the commission agreed a statutory protocol governing how government departments and the Law Commission should work together on law reform projects. We see this as a key document for ensuring a more productive relationship with the Law Commission and improved rates of implementation of Law Commission reports.

The protocol covers the various stages of a project: before the commission takes the project on; at the outset of the project; during the currency of the project; and after the project. It applies both to projects set out in one of the commission’s regular programmes of law reform and to projects which arise out of individual referrals made to the commission. The protocol applies only to projects which the commission takes on after the date on which the protocol was agreed, although government departments and the commission have agreed to take it into account, as far as practicable, in relation to projects which were in progress at that date. This protocol does not apply to commission proposals for consolidation or statute law revision. I commend the protocol as a thorough and efficient process.

During the debate, reference was made to what might or might not need to be included in the Queen’s Speech. The Committee will of course appreciate that I am not in a position to comment on the contents of the Queen’s Speech. I take account of what the noble Lord, Lord Kirkwood, said about the other measures that it provisionally contains and I undertake to bring the contents of this debate to the attention of the Ministry of Justice—and further, if necessary. I cannot give any further assurance beyond that. However I can say, counter to the observations made by the noble Lord, Lord Beecham, that there is a good level of communication between the Ministry of Justice and the Law Commission, particularly in relation to the forthcoming programme. The consultation for the commission’s 12th programme closed on 31 October and the commission is currently reviewing the suggestions that have been made. It has submitted proposals, and the main part of its law reform will then be set for the following three years.

The noble Lord, Lord Beecham, referred to the report of the Law Commission's proposals and criticised certain delays in some areas and the failure to implement—or not to take up—certain proposals. Although the Law Commission provides invaluable assistance to any Government of whatever colour on law reform, there is no obligation on the part of a Government to bring forward proposals: it is a question of using a valuable resource. For example, the noble Lord referred to remedies against public authorities. I was one of the consultees on that particular exercise. I can say that there was far from agreement among the consultees about the correct way forward. The fact that the Law Commission examines a subject and comes up with proposals does not necessarily mean that it has provided the perfect answer, although very often it provides valuable assistance.

I should make some observations about the Lord Chancellor's Report on the Implementation of Law Commission Proposals and the duty introduced by the Law Commission Act 2009 for an annual report. The noble Lord, Lord Beecham, has already read it, and the noble Lord, Lord Hodgson, will be able to read it shortly. It was published on 8 May, so this is a timely debate. On easements and covenants, I refer the noble Lord to paragraph 52, on the insurance contract Bill, paragraph 8 on third parties’ rights against insurers, paragraph 32 and termination of tenancies paragraph 61, which may assist his reading thereafter.

The report shows that a number of Law Commission proposals have taken effect:

“The Trusts (Capital and Income) Act 2013 has come into force, as have the amendments to the Companies Act 2006 which streamline the system for registering charges and securities interests granted by companies. In furtherance of the Commission’s function to repeal laws that no longer serve any useful purpose”—

another important part of its work—the largest ever Statute Law (Repeals) Act, removing more than 800 Acts from the statute book, received royal assent on 31 January, 2013 and came into force immediately.

Perhaps I may deal with one area which I know several noble Lords were concerned about, which was the regulation of healthcare professionals. Rightly, there was reference to the considerable amount of work that was done in that respect and I think that there will be a lot of sympathy for the observations made by the noble Lord, Lord Patel, about the need to consolidate and improve the regulation of healthcare professionals.

The Law Commission began its work in response to the Department of Health’s White Paper in 2011. It carried out research into the then current regulatory system for healthcare professional regulation in preparation for its public consultation, which opened on 1 March 2012. It ran for a total of 13 weeks, and the Department of Health submitted a response. Following analysis of the responses to the consultation exercise and engagement with the Department of Health and other key stakeholders working to develop its policy, the Law Commission published its report and recommendations alongside a draft Bill on 2 April 2014. On behalf of my colleagues at the department, I would like to say thank you to the Law Commission for the significant amount of time and effort that has been put into developing such a detailed and thorough analysis. I can tell the Committee that the Department of Health is considering the Law Commission’s proposal with great interest and will produce a formal response in due course.

Of course, there has also been the report by Robert Francis QC, containing a total of 290 recommendations, a number of which related to the regulation of healthcare professionals, which will also bear considerable consideration. I know that officials at the Department of Health and the Nursing and Midwifery Council are currently working on the possibility of secondary legislation and associated amendments to the NMC rules which will give the NMC power to carry out its fitness to practice and registration functions more efficiently. The GMC and the NMC are also working together with other healthcare regulators to agree a consistent approach to being open and honest. As the noble Lord, Lord Patel, will know only too well, the explicit professional duty of candour, much debated in your Lordships’ House over the years and which is now a firm recommendation, is likely to find its way into law in due course.

I fear that I am unable to commit further than that, but I hope that noble Lords will find some encouragement from that.

[Lord Kirkwood of Kirkhope]

Before the Minister sits down, the question I asked was whether the Ministry of Justice could add its considerable weight to what I know is the view in the Department of Health that it is important to make some progress with that legislation in some way in the next parliamentary Session. Is the MoJ willing to support that view to the people putting together the proposals for the parliamentary programme for the next year?

[Lord Faulks]

The MoJ has a role by statute to liaise with the Law Commission. That is about as far as I can take it. I personally have sympathy with the concerns expressed. So far as that assists, I hope that I can bring them to the attention of my masters, as it were, in the Ministry of Justice. I fear that I cannot go any further than that. I think that the noble Lord will understand that.

I think that that has dealt with most of the main issues. As I said, the particular concerns of my noble friend Lord Hodgson are, I think, largely met in the report. That is not to say that they are not of considerable importance—they are. However, I respectfully reject the suggestion that the Government are sitting on their hands in respect of the unimplemented proposals. I hope that I have explained that there has been a great deal of progress. Of course, some have not been progressed at the pace that some would like, but there have to be priorities. To give one example, on one aspect of potential reform that has been mentioned, the termination of tenancies project, which relates to the Law Commission report published in 2006, we accept that that is a very long period between publication and decision, but we hope to reach a final decision this year.

The noble Lord, Lord Beecham, was critical of the Government’s criticism of his party’s suggestions in relation to private landlords and security of tenure. I think that the debate so far has focused on whether or not rate freezes of three years were necessarily a good idea. The noble Lord eschewed party politics and then proceeded to indulge in it. I respond by saying simply that the case for rent control is far from clear.