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Lord Meston: My Lords, I should like to make two preliminary points about the treatment of Bills which emanate from the law commissions. The first, which has already been touched upon, is the delay in turning them into legislation. This Bill is the product of three reports from the English Law Commission and two reports from the Scottish Law Commission. Those reports were
It is characteristic of Law Commission proposals that they are researched and argued thoroughly and that they are generally uncontroversial. The reports typically come complete with draft Bills annexed to them, and when eventually introduced such Bills usually take up little parliamentary time. Thus, Law Commission Bills may not need any particular fast track or special track through Parliament but rather a faster track to the parliamentary starting gate.
The consequences of delay are various. Two consequences have struck me. First, the reports and draft Bills themselves are overtaken by other developments in the law, sometimes, but not always, small and unforeseen developments. Secondly, there is created a degree of uncertainty in the minds of the public and the legal profession who read the law commissions' proposals and assume--and indeed are entitled to assume--that change will follow within a reasonable time, and are entitled to organise themselves accordingly. Likewise, after a lengthy delay they are perhaps entitled to assume that, after all, the proposed changes will not take place. I hope that the Bill's introduction marks the beginning of an endeavour to clear up some of the backlog.
The second point is more technical. For some time of course it has been possible for the courts to look at Law Commission reports and draft Bills as an aid to statutory interpretation. It is now also possible for the courts to be referred to parliamentary debates in certain circumstances for the same purposes. With that development, the courts can focus on the reality of what Parliament intended if there is an ambiguity or obscurity apparent on the face of the Act.
However, more often than not, the lawyer who trawls through the Hansard reports finds that in the debates there was little or no reference or guidance to the intention behind the use of the word or phrase which concerns him or her. In the case of legislation being debated which uses the same wording as a Law Commission Bill, the absence of parliamentary comment is generally not surprising. What can be perplexing--I am speaking with experience of a case which is presently sub judice--is the absence of an explanation to Parliament when there are significant, or possibly significant, differences between the Law Commission's draft Bill and the Bill as introduced to Parliament.
If there are such differences, it would add to the effectiveness of the parliamentary process, as well as helping the courts in their interpretation of the enactment at a later date, if the existence of, and general nature and reason for, such differences could at some stage be mentioned, if only in the explanatory memorandum which we have as part of the printed Bills introduced into this House.
The noble Lord, Lord Irvine of Lairg, indicated his understanding that a variable rate could be ordered. It may therefore be that there is some other simple explanation for the difference which I am too stupid to have grasped, but it may also be that in such a situation in years to come the courts will have to speculate as to why the draftsman of the Bill, and Parliament in enacting it, departed from the words in the Law Commission Bill.
Likewise, in respect of Part II of the Bill, there are certain differences of wording. I think that I understand the reasoning behind those changes, but I may seek to probe further in Committee. In any event, the law commissions are to be congratulated on tackling the law concerning the validity of potentially polygamous marriages in the way that they have, following the difficulties thrown up by the decision of the Court of Appeal in the case of Hussain. Even for those who have to consider that area of law frequently, it is sometimes complex and confusing. Accordingly, the sensible proposal in the Bill to treat potentially polygamous marriages as monogamous is welcome. It is to be hoped that it will remove any disadvantages in terms of matrimonial relief, the right to remarry, rights of succession and the right to social security.
I believe that Clause 6 deals with the various particular consequences of the proposed change. I do not believe that Clause 8(1) can be read as suggesting that polygamy is an option available to the Royal Family, merely that whatever other problems the Royal Family may have to trouble them, potential polygamy is not one of them.
So far as concerns Part III of the Bill, I had thought that the proposals were uncontroversial, removing the double hurdle placed in the way of intending plaintiffs by case law both in England and Scotland. Successive works on the conflict of laws by the late Dr. Morris have cited the condemnation of the first branch of the rule in Phillips v. Eyre by Professor Lorenzen who wrote over 60 years ago:
Having recently read the trenchant criticism of the Law Commission's proposals in the Law Quarterly Review of 1991, which has been echoed by the noble and learned Lord, Lord Wilberforce, and having heard my noble friend Lord Lester on Part III of the Bill in so far as it departs from the Law Commission's Bill, I know that I am now in waters too deep for me to make any useful contribution on that aspect of the Bill beyond asking for certainty for those of us who may have to dip our toes in only occasionally.
Before I speak about one or two matters of detail, I have to remind your Lordships that, as the noble Lord, Lord Irvine of Lairg, said, the only ultimate way of giving effect to Law Commission work is by statutory provision. It is true that the analysis of existing law which the Law Commission provides in its working papers and its final reports can of itself be useful: I have found those analyses useful from time to time while sitting judicially. But the ultimate proposal of the Law Commission is for a Bill, and therefore it is by statutory intervention only that the proposal can be given effect to.
It is a consequence of what my noble and learned friend Lord Wilberforce said, that, so far as concerns private international law at least, it would be difficult for the Law Commission to operate because it is bound to innovate ultimately--if it is to innovate effectively--by statutory means. I hope that we shall be able to have a number of these Bills. As your Lordships know, the gracious Speech indicated the promotion of law reform measures. I hope that that will occur.
One of the difficulties of law reform is that it is sometimes hard to obtain the necessary measure of agreement. In that connection, I refer to what was said by the noble Lord, Lord Irvine of Lairg. In a sense law reform embraces all changes in law. Those are proposed by the Government on the basis that they are reforms. However, here we are dealing with law reform which flows primarily from the law commissions, although from time to time other bodies may produce proposals which fall properly within that category.
I wish to comment on some of the special issues that have been mentioned, but perhaps full discussion is best left to the Committee stage. The Law Commission formulated its proposals, which are incorporated substantially in Part III of the Bill, against the background of the rule in Phillips v. Eyre and Boys v. Chaplin, as referred to by my noble and learned friend Lord Wilberforce. The latter case contains a distinguished account of the law as it then stood. The law was developed in the Privy Council in the Red Sea Insurance case. I believe that, technically speaking, the decisions of the Privy Council, while a persuasive authority here, are not part of the law of this country. I have come across at least one case in which the House of Lords in this jurisdiction did not follow closely a parallel case in the Privy Council in relation to the effect of duress in the criminal law.
It is fair to say that in the Red Sea Insurance case the Judicial Committee of the Privy Council expressed difficulty in knowing to what extent exceptions were to be permitted to the law of double actionability. Therefore, I believe that the Law Commission's proposal that that rule should be abolished is wise. I say that with all due respect to the great learning and
The noble Lord, Lord Lester of Herne Hill, claimed a larger effect for the proposal of the Law Commission than it had. I understand the proposal to be that where the conduct constituting tort or delict took place in the United Kingdom the law pertaining to that part of the United Kingdom should apply. I do not believe that that proposal will in all cases have the effect that the noble Lord suggests. However, the difficulty is that if that is a good rule for England, Wales and Scotland, it is hard to see why it is not a good rule for everyone else. If that is right the whole system is undermined. The criticisms levelled at the Law Commission's proposal--that it is nationalistic in character and undermines the commission's own proposals--has a good deal of substance. As has been pointed out, there are public policy provisions and, as I indicated in my opening speech, the possibility of enforcement by reference to the convention laws of this country.
My submission to your Lordships is that these matters are technical. They involve controversy which is not party political but technical, and a good deal can be said on both sides. However, I hope that whatever is said will not be at such length as to destroy the possibility of this route for this type of reform. Those of your Lordships who are interested in having the Law Commission's reports brought forward and implemented--I know that that is true of your Lordships as a whole--will agree that the proposals of my noble friend Lord Jellicoe, which we are now using, are most important. Consistent with the proper consideration of these matters, I should not like anything to happen that would undermine the utility of that proposal for dealing with questions of this kind. I suggest that these are questions of a technical kind which are appropriate for the special committee, as I mentioned earlier. If your Lordships give the Bill a Second Reading I propose to move that it be committed to a Special Public Bill Committee. I commend the Bill to the House.