My Lords, in speaking in support of this amendment, I draw attention to a matter which I believe to be of general importance and relevance to all the contentious amendments before the House this afternoon, but which has not, I believe, been referred to at all in previous debates on this Bill either in this House or the other place—namely, that the Law Commission has had no input at all into the Bill. The subject matter of the Bill is not on the published programme of current work of the Law Commission: nor—I checked this point a couple of
days ago with the press officer of the Law Commission—have there been any informal consultations or amendments concerned with the Bill. Neither the substance of the Bill nor its drafting has had any input at all from the Law Commission. Yet this is a Bill which is said to make significant changes in the common law.
Whether it does, indeed, make significant changes in the common law is highly contentious. Along with many of my noble and learned friends, I believe that it makes no significant change at all. However, on the hypothesis that it does make significant changes in the common law, it is eminently a matter of law reform which should be the subject of systematic and intense study by the Law Commission and a consultation with judges, the legal profession and the wider public, conducted by the commission. None of that has happened.
3.45 pm
It is ironic that next year sees the 50th anniversary of the establishment of the Law Commission by the Law Commissions Act 1965. “Law Commissions” is in the plural because there is the Law Commission for England and Wales and the Scottish Law Commission, which of course is now devolved. The Bill that became the Law Commissions Act 1965 was introduced by the then Lord Chancellor, Lord Gardiner, as the “jewel in the crown” of his programme of law reform. The Second Reading of that Bill, in your Lordships’ House, took place on 1 April 1965 and Hansard shows that it was a quite memorable debate. Lord Gardiner made a long and eloquent speech, towards the end of which he said:
“My Lords, our law will never be put into a proper state unless and until there is a body of men”—
I am sure the Lord Chancellor did not intend to exclude women—
“whose sole duty it is to submit the whole of our law to a systematic and continuous review—and that is the object of this Bill”.—[Official Report, 1/4/65; col. 1152.]
There was widespread support for the Bill on all sides of the House. Two former Lord Chancellors spoke: Viscount Dilhorne and Viscount Simonds, who was then 83 years of age, or thereabouts. Several Law Lords spoke, including three who were among the most distinguished judges in the second half of the 20th century: Lord Wilberforce, making his maiden speech, Lord Denning and Lord Reid. Lord Wilberforce drew a distinction between what he called “true law reform” and the amendment of taxing statutes—which is inevitably technical and in almost continuous process—and what he referred to as statutes concerned with social questions. He said these were,
“matters which are really those of social policy and not law reform at all—for example, questions dealing with the eviction of tenants from houses, or leasehold enfranchisement. These are matters of social policy which, once the policy is decided, can perfectly easily be dealt with by the lawyers”.—[Official Report, 1/4/65; col. 1173.]
Those are the sort of matters which may not necessarily call for intervention or participation by the Law Commission, but the reform of the common law is quite different. I must not put it too high, but it seems to me to come close to a constitutional issue if, nearly 50 years on from the setting up of the Law Commission, reform of the common law is a matter on which the commission is bypassed completely.
This is underlined by a further, much more modest, statute. The Law Commission Act 2009 made two changes, specifically directed to the relationship between the Law Commission and Parliament. On 25 March 2009, in another place, the Lord Chancellor, Mr Jack Straw, had said:
“Good law is imperative for accessible and modern constitutional arrangements. For 40 years the Law Commission has played a vital role in that respect, but I intend to strengthen its role by placing a statutory duty on the Lord Chancellor to report annually to Parliament on the Government’s intentions regarding outstanding Law Commission recommendations, and providing a statutory backing for the arrangements underpinning the way in which Government should work with the Law Commission”.—[Official Report, Commons, 25/3/09; col. 23.]
That measure had originally been two clauses in the draft Bill—which I think was originally called the Constitutional Renewal Bill but was changed to the Constitutional Reform Bill. However, it was decided—very sensibly, if I may say so—that those clauses should form the subject matter of a separate Bill, which was introduced, with the support of the Government, by none other than my noble and learned friend Lord Lloyd of Berwick. In this House, at Second Reading of the Bill that become the 2009 Act, the Minister, the noble Lord, Lord Bach, said:
“It is a great privilege for my department to be associated with the Law Commission. The commission, as has been said on all sides, makes a significant contribution to law reform, which is greatly valued by the Government, those in the legal and judicial world and beyond”.—[Official Report, 24/4/09; col. 1737.]
It is a matter of great regret that on a Bill of this sort, which claims to be making significant changes to the common law, there has been no input or advice from the Law Commission, which is, in the words of Lord Gardiner, who was the Lord Chancellor in 1965, “a body of men”—and, of course, women,
“whose sole duty is to submit the whole of our law to a systematic and continuous review”.—[Official Report, 1/4/65; col. 1152.]
This Bill is not the right way to reform the common law. It will make it neither clearer nor better.