Law Commission
(10 years ago)
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Lord Hodgson of Astley Abbotts
To ask Her Majesty’s Government what plans they have to prioritise and clear the backlog of Law Commission bills awaiting parliamentary consideration.
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 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.
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.
Lord Patel (CB)
My Lords, I am delighted to take part in this debate, initiated by the noble Lord, Lord Hodgson of Astley Abbotts. Although much of what I was going to say has already been said by the noble Lord, Lord Kirkwood of Kirkhope, I will re-emphasise it because it just goes to show why the medical profession feels that this particular part of the Law Commission’s report is so important. As the noble Lord said, it is not about health but about the protection of patients and the public, for better healthcare.
It is on that basis that I wish to speak about the Law Commission’s Regulation of Health and Care Professions Bill, which sets out the framework that will cover all nine health and social care regulators—not just the medical regulator but the medical councils. I declare no current interest regarding the General Medical Council, although of course I am a doctor and have been a member of the GMC and, as the noble Lord said, I produced a report on medical education in recent times.
In 2011, the Department of Health published a Command Paper called Enabling Excellence, which set out the Government’s position on the regulation of healthcare professionals, so there is no doubt that as long as three years ago they intended to do something about healthcare regulation. The Command Paper announced that the Law Commissions of the UK would review the legislation underpinning each of the professional regulators. They wanted the commissions to address four key areas: first, the independence of the regulators, with emphasis on addressing the current dependence on government for legislation; secondly, the simplification of the legislative framework, giving regulators greater autonomy to decide how to meet their regulatory duties; thirdly, reducing the cost of regulation, with emphasis on the scope for mergers, the consolidation of functions, the reduction of registration and fitness-to-practice costs and co-operation on quality assurance of education; and, fourthly, accountability—the greater independence granted to the regulators would be matched by a commensurate strengthening of their public and parliamentary accountability for their performance, including widening the role of the Professional Standards Authority.
As recently as April 2014, following the conclusion of the review, the Law Commissions of the UK published the draft Regulation of Health and Social Care Professions Bill, to which noble Lords have already referred. It is now the Government who need to take the next step, and it may well be for the Department of Health in England—with the assistance, I hope, of the Ministry of Justice—to decide how it wishes to take the Law Commission’s Bill forward. I hope, as do other noble Lords, that it will be in the Queen’s Speech on 4 June.
For its part, the GMC strongly supports the introduction of the Bill, which provides a once-in-a-generation opportunity to provide a long-term legislative framework that would enable the GMC and other regulators to innovate and respond quickly and efficiently as society’s expectations change in the years to come, as the noble Lord, Lord Kirkwood, referred to. The Bill would allow the implementation of a range of long-awaited reforms that are not possible under our current legislation, and would enable greater opportunities for collaboration between the different regulators.
Let me give some background. The Medical Act 1983, which provides the GMC with its statutory powers, was designed for a different era. Like the legislation underpinning other professional regulators, it is outdated, complex, highly prescriptive and difficult to change. The regulation of healthcare professionals Bill, on the other hand, would ensure that the GMC and other professional regulators were much less reliant on government lawyers and archaic procedures to modernise professional regulation. Currently, rules and regulations made by the General Medical Council are in the form of statutory instruments and require the involvement of the Department of Health in England, the Privy Council and Parliament. The process is interminably slow. This Bill proposes wide-ranging powers with its own rules, subject to a duty to consult, which would allow for more efficient and modern practices by the regulators.
There are a number of reforms that the General Medical Council and other health professionals would look to implement as quickly as possible if the Bill were taken forward. I will give examples. There are a range of reforms that the council and other regulators would implement to improve their fitness-to-practice procedures for the benefit of patients and employers. Currently, they are cumbersome and lengthy. Many of these reforms have been consulted on already and received widespread support but cannot be implemented without new legislation. There is a need to speed up fitness-to-practice processes and to be able to appeal panel decisions when the General Medical Council feels that they do not protect the public—and the key role for the GMC is to protect the public. It also needs to be able to strike off automatically any doctor who has committed a serious crime such as rape without the need to refer to a panel, whereas now there is a need to do so.
The GMC would also be in a better position in having management with legal chairs and requiring doctors who have restrictions on their practice to undergo checks on their performance before a full return to work. The legislation does not now allow for that. The draft Bill goes some way to implementing a number of these reforms. Clearly, despite its many clauses, it will require a great deal of scrutiny and improvement, but I am sure that we are up to it.
The regulation of healthcare professionals Bill will provide the flexibility to approve education and training obtained in a range of programmes. Let me briefly refer to why this is essential. It will enable the General Medical Council and other regulators to address the current problem of having to recognise or derecognise an entire institution because one part of the programme offered by that institution fails to meet standards, even though other programmes may be acceptable. Because of that difficulty, we often find that the GMC is reluctant to take that action. These changes will enable the GMC better to support the efforts of UK universities and other educational institutions to deliver UK education and training overseas, which would be of enormous benefit to the United Kingdom and its reputation worldwide as a centre for education in healthcare.
In addition, the Bill will provide a way to introduce the more nuanced suite of regulatory sanctions recommended by the recent review of quality assurance in medical education—even though I might have had some say in that. The Bill could also enable greater efficiency among regulators, with more opportunities for co-operation. The regulators would have a new duty to co-operate with each other, which they currently do not, as well as being able to delegate any of their functions to another regulatory authority.
In conclusion, simplified legislation would allow the professional regulators to be much more flexible and innovative in using regulation to support and promote safe, compassionate patient care for patients. All eight of the professional regulators agree that:
“This will be a once in a generation opportunity to bring long awaited reform to ensure that the health professionals who treat us are properly trained, competent and up to date”.
The Minister may not feel that it is for the justice department to bring such a Bill forward, but I am sure that he and the department are in a highly respected position to influence other departments in addressing this issue, and at least to indicate that they will bring this Bill to Parliament in the next Queen’s Speech.
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.
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.
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.