§ 3.0 p.m.
§ Lord SIMON of GLAISDALE rose to call attention to the Report of the Renton Committee on the Preparation of Legislation (Cmnd. 6053); and to move for Papers. The noble and learned Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper, and I feel greatly privileged to move it. It raises a matter of great importance to our society and the ordinary citizen. Informed opinion has 946 been deeply and increasingly, and rightly, disturbed by the obscurity of much modern legislation, and when I say "modern" I do not merely mean in the last decade or so. We are going through a period of statutory activism. It has already lasted a long time and is likely to continue. The citizen is affected in his most intimate life. One example would be the Children Act, which was passed in the last Session, about which I shall venture to say more in a moment. But there are also the large statutory innovations creating new rights, benefits and duties which arise out of the welfare legislation that has taken place during this century. If the statutory provisions are obscure, arcane and hierophantic, then the citizen is deprived of his right to live under the rule of law. Indeed, if it is understandable, or largely understandable, only by the officials who have to work the scheme, to that extent we are moving from a democratic to a bureaucratic State. A certain amount of that has to be accepted, but a great deal of the obscurity is unnecessary, and it was because of public concern that the Renton Committee was set up.
§ Certainly my first duty—and it is one which I perform with pleasure—must be to congratulate the Committee on the Preparation of Legislation on their work, and to express our gratitude for it. Obviously immense labour has been involved. They made detailed provisions for improvement, and I am particularly glad that the two distinguished Members of your Lordships' House who were on that Committee are to speak in this debate. Indeed, I am very glad they are to speak today for another reason, which is that it would be a great pity if this were to be purely a lawyers' debate. Your Lordships' House should not this afternoon become a lawyers' paradise—which I take to be a place where the serpent is firmly entwined round the Tree of Knowledge, if not round the Tree of Life—and I am very glad that a number of those who are not lawyers are to speak today.
§ I shall have to draw attention to some specific statutory obscurities, but I want to say at the outset that I would not wish anything I say to be taken as a criticism of the draftsmen or of the draftsmen's Office. I have had to work with Parliamentary draftsmen in a number of 947 capacities over a number of years and I have nothing but admiration for their skill, patience, industry and dedication for the purposes of our statutory programme. Indeed, it is not the draftsman who is at fault; it is the system which is at fault. The machinery and the method are both wrong, as was firmly brought out by the Committee.
I wanted to refer to one or two examples, as I have said. Perhaps the most blatant one is that cited in the Renton Report in paragraph 6.3 at page 28. This concerns a provision of the National Insurance Act 1946, and it has a number of lessons to teach. It reads:
For the purpose of this Part of the Schedule a person over pensionable age, not being an insured person, shall he treated as an employed person if he would he an insured person were he under pensionable age and would be an employed person were he an insured person".
There was a time when I believe I understood that, but that was many years ago and much bilge has passed under the bridges since then. I am quite sure that the officials who worked the scheme understood it, and in fact it is a very scientific piece of drafting. It has one disadvantage, but that is an insuperable one. It appears in a National Insurance Act and deals with contributions that have to be made. In other words, it deals with taxation—a method of raising public money—and what is quite certain is that it could not possibly be understood by the ordinary person affected by it. That seems to me something which is very wrong.
§ There are also several other lessons to be learned. That provision was repeated in a number of other National Insurance Acts passed by successive Governments, which shows that there is no one Party or one Government which is responsible for obscurity. It disappeared finally in agale of laughter; but the situation still remains, requiring statutory provision. Alternative statutory provision has been made, and that suggests that it was never necessary to couch a provision in such an obscure way at any time.
§ Perhaps I might invite your Lordships to look at the enactments set out in Appendix B of the Report. There are many examples of obscure legislation set out seriatim there, in which are cited the 948 criticisms made by famous judges noted for their penetration. The late Lord Reid is one whose words are freely quoted: he confessed himself, over several of those enactments, to be completely baffled as to what they were getting at. Your Lordships will remember the Children Bill which was passed in the last Session. That was an example—a bad one—of legislation by reference. The Renton Report has a very sophisticated discussion of legislation by reference, and I do not think that any future discussion can take place without bearing in mind what is analysed there. Nevertheless, the fact remains that in one case in regard to that Act what was described as "a particularly offensive example of legislation by reference"was—I should have thought, without any difficulty—subsequently amended. This tends to show that it was never necessary originally and was almost certainly due to the draftsman having to work under excessive pressure. But the Act still contains a great deal of legislation by reference, and if I may, I shall presume to return to that later in my remarks.
§ So here we have a real evil and the question is: how should it be corrected? We have, first, the necessity of improving the machinery; and, secondly, the necessity of improving the method of legislation. The Committee on the Preparation of Legislation made a number of detailed suggestions and your Lordships will, I know, be waiting to hear from the noble and learned Lord on the Woolsack what is the reaction of the Government to them. It will not only be this Government which is closely watched, but every successive Government from now on, to see how far those provisions are implemented.
§ May I first turn to the question of machinery. It seems to me that what one wants is improved scrutiny of legislation with regard not to its policy but specifically to its perspicuousness and clarity, and I think that that improved scrutiny is needed at two stages. One is before the introduction of a Bill to Parliament, and the other is during its passage through Parliament. With regard to the scrutiny before introduction, that was outside the terms of reference of the Renton Committee although there has been some correspondence recently published between Sir David Renton and the Prime Minister which touches on the matter, and I know that the Renton Committee considered 949 the preparation before introduction. If I am to discuss this subject, I think I shall have to refer to the committee organisation of the Executive, which I believe is treated with quite unnecessary secrecy. It was well known long before the Crossman Diaries; Herbert Morrison discussed it in his book, Parliament and Government; it was discussed by Professor Jennings in his famous book on Cabinet Government. Therefore I shall presume to touch to some extent on the committees of the Executive.
§ It seems tome that there is one Committee admirably adapted and placed to scrutinise legislation, not with regard to its policy but with regard to its drafting, from the point of view of perspicuousness and clarity; that is, the Legislation Committee of the Cabinet. It is not a policy committee at all—any policy matter that is thrown up there is referred back to the appropriate policy committee—and I venture to suggest that that committee should be strengthened and given the specific duty of scrutinising legislation for the purposes that I venture to suggest to your Lordships. That means, I think, that the Lord Chancellor should always be chairman of that committee, and that all the Law Officers and Ministers in the Law Officers' Departments should be members. There is another point. Certainly when was on that committee we tended to get Bills much too close to their introduction to Parliament for really effective scrutiny, and I venture to suggest that legislation would be greatly improved if a Bill went before the Legislation Committee before its introduction to Parliament in ample time for it to be referred back if necessary for redrafting.
§ There is another point which I should perhaps mention. I do not know whether Finance Bills now go before the Legislation Committee—they certainly did not formerly—but it is in Finance Acts that we have had some of the most difficult and baffling provisions which affect the subject on matters on which he is entitled to be clear as to his rights. So I venture to suggest that Finance Bills should go before the Legislation Committee. The argument against it was always that it might lead to a breach of security, but, in fact, Finance Bills, to my mind, involve security less than many other Bills, particularly because they are almost always founded on Budget resolutions. So my 950 suggestion as to the Legislation Committee is that that is the Committee which should specifically be given the duty of scrutinising legislation from the point of view of its drafting and not its policy; that it should be presided over by the Lord Chancellor; that all the Law Officers should be members; and that Bills, including Finance Bills, should be brought before it in abundant time before their introduction.
§ I pass from that to the machinery of Parliamentary scrutiny and in what I say I am repeating a suggestion which I made to the Renton Committee. I must tell your Lordships that it did not find favour with them but I should nevertheless like to canvass it before your Lordships. There is a natural tendency in Parliamentary proceedings to concentrate on policy; but there is, in my respectful submission to your Lordships, a stage in those proceedings when specific scrutiny should be given to the drafting of a measure. When all the policy decisions have been made, the Bill should then be scrutinised to see whether it is readily understandable by the citizens who will be affected by it. I can well understand business managers saying, "Of course, we cannot snare time for an extra stage"; but it seems to me that the Report stage in the Second House which considers a measure could well be devoted to the purpose which I have just described. Indeed, time might be saved if the job were done by a Joint Select Committee of both Houses, and I venture to raise that suggestion again for your Lordships' consideration.
§ I pass from machinery to method, and here I cannot really do better than quote from the Renton Committee's Report itself.
§ Lord SLATER
My Lords, may I, as a layman, ask a question of the noble and learned Lord? He is an ex-Minister of another place; he understands the administration and how it works in the various Ministries. Is it not correct to state that within each Ministry there is a section which has people of legal standing administering and advising the Minister? What is to happen in regard to the top civil servants inside each Ministry?
§ Lord SIMON of GLAISDALE
My Lords, I was a political neighbour of. 951 the noble Lord, Lord Slater, so I hope he will acquit me of discourtesy if I do not answer that question, because there are a number of noble Lords who want to speak in this debate; and I want to cite a submission that was made by my noble and learned friend the Lord Justice-Clerk, who has apologised for the fact that he cannot be here today owing to judicial duties. This was the submission that he and the Lord President made jointly to the Committee and which was quoted by them with approval:Most of the problems encountered by the Courts flow directly from the tendency of Parliament to ignore the virtue of enacting broad general rules in which the principal and overriding intention can be readily seen, and to try to legislate in detail for particular aspects of the mischief which presumably the statute is intended to curb. It is an eternal truth that one can seldom foresee every combination of circumstances which may arise, and the practical consequence of attempting to do so and of drafting a statute so as to concentrate unduly on foreseen examples is more often than not to conceal the general intention and the ambit of that intention in a welter of detached provisions which leave one in doubt as to whether a particular combination of circumstances not expressly provided for was intended to be covered at all. It is probably the case that legislation in detail is resorted to because Parliamentarians harbour the suspicion that judges cannot be trusted to give proper effect to clear statements of principle. This, with respect to them (the Parliamentarians), is wholly unfounded. Indeed, so far as Scots judges are concerned, the strength of their common law system lies in its reliance upon broad statements of principle, and there is no reason to suppose that similar broad statements of principle in statute law would not, in their hands, be applied to the facts of any given case, to achieve the will of Parliament.I should like to endorse that submission as strongly as I can. Indeed, I should like to think that English judges would adopt the same approach as Scots judges.
I have only one rider to add. It often happens that a Statute is to some extent a compromise between two general principles. Then it is important to cover at any rate the major foreseen examples where the principles may conflict. An outstanding example is the Race Relations Act 1968. There can be no question but that the general principle was discountenance of racial discrimination. Equally, there can be no question but that it was felt that it was undesirable or impossible to vindicate that principle in every situation, particularly private and domestic 952 situations. But one very important situation which was foreseen was racial discrimination by clubs. This was known to be widespread. Indeed, the Minister in charge of the Bill in this House was asked specifically about it and said that the Bill was not intended to deal with bona fide private members' clubs. That was never written into the Bill.
We had a debate on a Bill that was introduced by the noble Lord, Lord Avebury, in February last. It was obviously a surprise to him and to the noble Lord, Lord Brockway, both of whom were, I think, Members of Parliament at the time, to know that that assurance had been given. This means that the failure to write in Parliamentary intention on a crucial matter, a socially most important matter, led to a failure of Parliamentary control. Parliament might have wished to legislate entirely otherwise than in accordance with the assurance of the Minister.
As a result of that not being done there was extensive and expensive litigation which ended finally in your Lordships' House, sitting judicially, construing the Act, with very little indication, in accordance with the assurance that had been given by the Minister. However, the Court of Appeal took a different view; and the citizens whom the law was designed to protect felt, I am quite certain, that they had been let down by the decision of your Lordships' House sitting judicially. That seems to me to be very undesirable. I suggest that the submission of Lord Wheatley should be adopted whenever possible but that where there are conflicting principles and well-known and important areas where they can be foreseen to conflict, that conflict should be resolved by Parliamentary enactment. I made that suggestion when sitting judicially in the clubs case and I was supported by my noble and learned friend Lord Kilbrandon. I made that suggestion again in the debate last February when I was supported by my noble and learned friend Lord Morris of Borth-y-Gest. The Minister, the noble Lord, Lord Harris of Greenwich, was good enough to say that what we had suggested would receive consideration and I am very anxious to know what consideration it has received.
May I say a word about legislation by reference. As I have said, there is 953 a most valuable and sophisticated analysis by the Committee on the Preparation of Legislation. I should like to take the example of the Children Act of last Session to show how undesirable even any sort of legislation by reference can be, particularly in a sphere which affects persons in their most intimate lives and in a measure which has to be used by social workers and local authorities. At the very least it means that anybody who is seeking to understand the law must have two volumes open at the same time and compare them. In the face of the criticism in your Lordships' House a great deal was done to take away the more blatant examples of legislation by reference in that Act, but many remain. In Part III of that Act, 24 sections out of 29 are examples of legislation by reference; in Part IV there are, 5 out of 10, and of the remaining 5, one says merely:This Part shall not extend to Scotland".Neither of those Parts is due for consolidation this Session and so far as I know they are not in the Law Commission's programme of consolidation. Adoption, Part I, is in this Session's programme. The fact that there was legislation by reference which has not been consolidated means that in the crucial first year of the Act social workers, local authorities, adoption societies and everybody else concerned has to work on legislation by reference. It is quite clear why we had that: it is because it suits the Government business managers—all business managers.
When we were dealing with the Children Act I said that I did not want to speak harshly of Government business managers. They perform a necessary task and they are apt to be starved of affection, anyhow; but in my respectful submission it is a great mistake that they should be allowed to dominate the form that legislation takes. If a Bill legislates by reference it is only the new provisions which can be debated; the old law cannot be debated. So that is a loss of Parliamentary control. And when the legislation by reference is followed by consolidation, as it often is, again the consolidation measure cannot be debated. It goes straight to the Joint Select Committee on Consolidation. Therefore it suits the Government business managers very well to legislate in this way.
954 My view, for what it is worth, is that most of the trouble we have had with obscure legislation, not only by reference but in every other way, is due to a desire to legislate far too much, far too widely, far too deeply. I need not expatiate on that matter because, during the last Session, your Lordships had a particularly painful experience, but in this connection, generally speaking, "more" means "worse", and quite unacceptable pressure is put on officials and draftsmen. Obviously most Ministers want to leave their mark on the Statute Book, but unless the Future Legislation Committee of the Cabinet exerts a firm control those marks are apt to be the kind of disfigurement that your Lordships see in Appendix B of the Report.
I will conclude as I began. Legislation which is unnecessarily difficult to understand is a derogation from the democratic right of the citizen to know by what law he is governed. Again I end as I began by expressing gratitude to the Committee for focussing attention on the problem and contributing so notably to its solution. My Lords, I beg to move for Papers.
§ 3.33 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I know the whole House will be most grateful to the noble and learned Lord, Lord Simon of Glaisdale, for opening this debate on the Renton Report so helpfully and, if I may say so, so constructively. His suggestions will, of course, be most carefully considered by the Government and myself, for he brings to the subject a wealth of experience and knowledge. He was, after all, once upon a time Financial Secretary to the Treasury and Solicitor General, and I have no doubt that he, too, had to grapple in those days as a Minister with the problems of legislation; and no doubt did his best, as those of us upon whom the burdens of Office now rest also try to do. In addition to that, he has had distinguished experience as a Lord of Appeal. I shall be commenting upon some of his suggestions in the course of my observations.
In debating the Renton Report I should like to begin by adding my own tribute to the many that have already been paid to Sir David Renton and his colleagues on the Committee for their most valuable Report. I am particularly glad to see 955 from the list of distinguished speakers, lawyers and laymen alike, who are to take part in the debate that I am to be followed by the noble Duke, the Duke of Atholl, and by my noble friend Lady Bacon, both of whom made distinguished contributions to the work of the Committee.
Gladstone once said of the preparation of one of his Budgets that he did not call the task "Herculean" because Hercules could not have done it. The task facing the Renton Committee must have been equally daunting because no inquiry of the kind they undertook had taken place for 100 years and in the meantime the Statute Book, like Topsy, "just growed and growed". Since the last war, in particular, there has been an unprecedented growth in the volume of legislation. As the Report said, some idea of the current flow of legislation can be obtained from the number of pages added to the Statute Book in the three decades from 1943 to 1972. In the period 1943 to 1952, there were 15,600 pages; 1953 to 1962, 11,000; 1963 to 1972, 18,000. In 1973 alone the addition to the Statute Book was no less than 2,248 pages. I have not immediately available the figure for1974; I suspect it might well have exceeded that number.
The Committee go on to say—this was a point made by the noble and learned Lord in pointing out the importance of the state and the content of legislation—that:There is hardly any part of our national life or our personal lives that is not affected by one statute or another. The affairs of local authorities, nationalised industries, public corporations and private commerce are regulated by legislation. The life of the ordinary citizenis affected by various provisions of the Statute Book from cradle to grave. His birth is registered, his infant welfare protected, his education provided, his employment governed, his income and capital taxed, much of his conduct controlled and his old age sustained according to the terms of one statute or another".The formidable accumulation of Statute Law to which the Committee drew attention in Chapter 7 of their Report is not necessarily an indication of the amount of Statute Law in force at any moment of time.
In February 1974, for instance, my noble and learned friend Lord Gardiner ascertained by a Question in this House that there were 3,480 Acts of Parliament 956 on the Statute Book on 1st January 1974, as compared with a higher figure of 3,680 on 1st October 1964. That shows that the healthy process of consolidation, which I am happy to say in the year 1974–75 produced 17 Consolidation Acts amounting to 870 pages and similar exercises of Statute Law revision and repeal, has succeeded in diminishing the total number of Statutes, despite the steady addition of new legislation to which we have grown accustomed.
This debate provides us with an opportunity as Parliamentarians to consider together how well we perform our task of making laws and how far we are assisted in this task by the Government of the day as the main promoter of legislation, and of course as the main provider of resources for the purposes of legislation. There is no doubt about the need for further improvements in the preparation of legislation. The Committee have provided us with a most valuable account of the difficulties that are now experienced and have pointed to possibilities for improvement, and they have done so in a very realistic way. I will deal in a moment or two with some of the detailed recommendations of the Report, but before I do so I should like to invite your Lordships to take a general look at the subject of the preparation of legislation as a whole.
For some noble Lords, the debate today will no doubt provide an opportunity to speak of the pressure of Parliamentary business, and to suggest that the main defect of our system of preparation of new legislation is that it is over-used. That was touched upon gently by the noble and learned Lord at the end of his observations. No one is more conscious than Government Ministers of the heavy load of legislation with which Parliament has been confronted in recent years.
However, I would like to say two things about this. First, every Opposition is apt to regard most Government legislation as an unnecessary and unwelcome burden on the Statute Book, except, happily, in matters such as law reform where one side has, by an excellent tradition, helped the other to achieve improvements. On the other hand, every Government tend to see all their geese as swans. These conflicting basic attitudes do nothing to relieve the burden which fresh 957 legislation places on all concerned. As a specific solution, statements of general principle might well make Bills shorter. The difficulty about this is that it might in the end produce less certainty if the intention of Parliament has to be divined by the courts from generalised abstractions. This is a fundamental issue which will prove highly relevant in the context of the forthcoming general review of Parliamentary practice which I will shortly be mentioning.
Secondly, Her Majesty's Government attach great importance to thorough consideration of the recommendations of the Report, not only because of their intrinsic importance, but also because the Government are committed to a broad and important programme of social reform as they see it, in which legislation must play a leading part. We are therefore as anxious as any to ensure that the machinery for achieving social improvements is as effective and satisfactory as we can make it. This applies to the Government as a whole, and in particular to those Ministers who have a clear responsibility, within the collective responsibility of the administration, for the maintenance and improvement of the general structure and language of legislation, as distinct from the content of particular Bills. This is traditionally a matter of particular concern to the Law Officers and to the Lord Chancellor of the day. Inevitably there will be occasions when the scope for exercising this function is limited by constraints of time, but I can assure noble Lords that within the limits of what is practicable the Law Officers and I strive, and shall continue to strive, to enhance the quality of legislation.
The Law Officers and I are members of the Legislation Committee, and invariably one or other of the Law Officers and I myself attend the meetings of that very important Committee. Sometimes the Lord Chancellor chairs the Legislation Committee, sometimes he does not. I confess I do not regard the act of chairing as being the most crucial factor in this connection, because chairing carries a lot of attendant duties other than actually looking after the state of the proposed legislation itself. Quite apart from the responsibilities that fall upon the Lord Chancellor and the Law Officers, I might add that arising out of the Renton 958 Report all Ministers have recently been reminded of their responsibilities in this connection for legislation which it may fall upon them to be responsible for introducing.
The fundamental question with which we must deal today is how best to improve the content, form and clarity of this large volume of legislation which Parliament produces. It is important to identify the nature and extent of this problem, and consider by what means it can be remedied in whole or in part. All the criticisms analysed in Chapter VI of the Report can fairly be summarised in its first sentence: that much of our Statute Law lacks simplicity and clarity. The noble and learned Lord has produced a prime example of the lack of both in the illustration which he gave, which I am happy to think is not very common, but it does from time to time arise and present us all with difficulties.
My Lords, the solutions that are proposed are broadly of two kinds, relating first to the technique of drafting itself and, secondly, to the form and layout of Acts of Parliament. As to the technique of drafting, no doubt we all share the view of the noble and learned Lord that the language of legislation should be as near to ordinary speech as precision permits. I am afraid I must emphasise those last three words. As has been said by Shakespeare himself, "There's the rub". The need for precision, the need for certainty, indicate clearly the first constraint placed on the use of everyday language as a means of expressing technical and complex concepts. This purpose is not made easier to achieve by the nature of the English language itself, whose richness and profusion of shades of meaning makes it the language of the poet rather than of the draftsman. Here I speak with complete impartiality as one who comes from a part of the country where a more ancient tongue is spoken and, with characteristic modesty, is called the language of Heaven.
My Lords, when considering the drafting of Bills we must recognise, as the Report fairly does, the inevitable constraints within which our draftsmen work—the constraints of time, the constraints of Parliamentary procedure and the need to compromise between the requirements of all users of legislation. These problems are exacerbated by the pressures 959 brought about by the volume of new legislation, of which I have spoken, and the extent to which, as we all know as Parliamentarians, Parliament is apt to want it both ways, to have legislation which is simple but also legislation which covers every possible contingency.
The nub of the problem of achieving to the fullest possible extent simplicity and clarity in our legislation is to find solutions that will best serve the collective interest of Parliament, the public, and the legal profession whose task it is to administer and apply the law, and advise upon it. Mr. Justice Stephen once observed:The draftsman's lot is hard. A considerable degree of precisionis required, precision which is essential to everyone who has ever had, as I have had on many occasions, to draft Acts of Parliament, which, although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain to a degree of precision which a person in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.That, I suppose, is a measure of the problems that the draftsman is up against.
t is in dealing with this problem, and with the difficulty of achieving the right balance between conflicting ideals, that the Committee's recommendations are of particular value. Their Report makes a large number of important suggestions, and this debate itself will be of great value, particularly in view of the expertise and the experience of those who will be taking part in it, in indicating your Lordships' reactions to the Report's proposals. They will, of course, be carefully considered by the Government when they bring forward their own proposals. With many of the Committee's recommendations, including those relating to drafting techniques, the Government are fully in accord. But it would, in my view, be inappropriate for draftsmen to be rigidly bound to follow in each and every case, and regardless of context, a particular format or convention; for example, in respect of the use or otherwise of mathematical as opposed to verbally expressed formula. I hope, therefore, that any failure on the Government's part to undertake to carry out each and every detailed recommendation as regards drafting techniques will not be inter- 960 preted as prevarication or dragging their feet, but rather as recognition, which I venture to think would be accepted by the Committee itself, that the draftsmen must continue to be given a degree of discretion in the application of particular techniques.
I believe, however, that I am fairly reporting the views of Parliamentary Counsel in saying that while they have reservations about whether particular recommendations (for example, Recommendation 28 about the use of tabulated schedules of amendments) would result in clearer legislation, they regard the Committee's recommendations regarding drafting techniques as providing, as a whole, a most valuable summary of the best current drafting practice. Since legislation and its amendment is an ongoing progress, this will be progressively embodied in the Statute Book in the coming years.
In particular the Committee's general endorsement of the practice of amending existing Acts by means of textual insertions, instead of by the alternative process known as legislation by reference, is already accepted in the day-to-day work of the Parliamentary Counsel. I thought that the noble and learned Lord, Lord Simon of Glaisdale, was a little hard on the form and content of the Children Bill, which it seems to me, with respect, did conform to the Renton Committee Recommendation No. 41, and it employed textual amendment throughout. If the alternative of consolidation and amendment had been used, it would presumably have called for the restatement of at least four codes: adoption, custody, children in care and guardianship. That might well have postponed the legislation in this urgently needed field for a very long time indeed, and I doubt whether it would have been welcomed by all those who had to assess the changes in the law to be effected by the legislation. But perhaps my noble and learned friend (if I may so describe him, because it would be the truth) and I can discuss and debate this together in a quiet corner so that we can come to some understanding, if not agreement, about it. But, as I have said, the process of amendment by textual insertions is now the order of the day.
Matters of drafting techniques are, in the circumstances, inseparable from the 961 problem of the number of trained draftsmen. The Government fully accept the high priority which the Committee consider should be accorded to the recruitment and training of more draftsmen. It is a problem with which I myself have been directly and deeply concerned. It must be recognised that an extremely high standard of recruit is required for this work, and that even so, as the Report indicates, it may take perhaps 10 or more years of training and experience before a draftsman can be left to handle a big Bill under pressure. What is needed and what the Government will provide, or seek to provide because it is not easy, is a continuing effort over a number of years to maintain the strength of the establishment of draftsmen. I am glad to say that in this connection the drafting strength of the Law Commission, to whose work Parliament and the public owe a great deal, has, as the Committee recommended, now been fully restore. This is of special importance, for the fact that its reports generally have annexed to them a draft Bill to give effect to its recommendations adds greatly to the value and acceptability of its work; and there is no doubt that the task of translating proposals into the discipline and restraint of a draft Bill concentrates the mind wonderfully.
I now turn to the detailed recommendations of the Report itself, but not at great length, and will indicate how the Government envisage that further developments in this field will proceed. There are a number of recommendations that relate to Parliamentary procedures which can best be followed up by Parliament itself. There are others where the responsibility rests with the Government. On some of these the opinion of the Statute Law Committee will be of great value. A third category of recommendations relates wholly or mainly to Parliamentary Counsel themselves.
The first category includes Chapter XII of the Report (Recommendations 32 to 38) concerning Anglo-Scottish legislation, and several of those in Chapter XVIII. In so far as certain of these proposals would involve changes in Parliamentary procedure, and could in certain circumstances involve legislation, it is proposed to refer them for further consideration to a Select Committee. Subject to any views expressed today, the 962 Government propose to bring forward the appropriate Motions as soon as possible. These will include the consideration of a new procedure for the enactment of separate parallel Acts for England and Wales and for Scotland, or for the reenactment of a Scottish version when the introduction of parallel Bills is not possible. It includes also those proposals in Chapter XVIII of the Report which would involve significant changes in Parliamentary procedure, such as the proposed abolition of Appropriation and Consolidated Fund Acts, and the suggestion that there should be a new procedure to facilitate the incorporation of drafting improvements after Royal Assent. Consultations have already begun between the two Houses with a view to submitting agreed proposals for harmonising the form of Amendments.
The second category I mentioned are matters which fall within the Government's responsibility. In respect of consolidation, for instance, the Government fully accept the importance of doing all they can to speed up the programme.
§ Lord HARMAR-NICHOLLS
My Lords, may I ask this question of the noble and learned Lord, because it seems a very important point to me. Is he saying that the proposal will be that Parliament will come to a decision by passing legislation, and some outside body, albeit an agreed body, will harmonise it in a way which will make it different from what Parliament proposed?
§ The LORD CHANCELLOR
My Lords, I am not suggesting the introduction of an outside body at all. This will be something done by agreement between the two Houses, by one of those happily amicable joint committees which will consider the matter. I am not proposing the introduction of intruders into this domestic Parliamentary scene. It is our responsibility. Parliament has a responsibility for this; it is not just the Government, or even wicked Ministers. We have as a Parliament overriding responsibilities ourselves.
I was beginning to deal with the responsibility of the Government themselves in this field, in particular in the field of consolidation. Here the Government fully accept the importance of speeding up the programme. As I was about to say, the Report quotes the First 963 Parliamentary Counsel as saying that on a very rough estimate to work off the backlog in the field of consolidation would call for a trebling of the current rate of consolidation for not less than 10 years. The key here, of course, is the availability of resources for tackling this highly skilled work, which takes us back again to the manpower and to the financing. We fully accept the proposal that the main responsibility in this field should remain with the Law Commissions, and with the appraisal of the Committee that it would not be practicable to consolidate the whole Statute Book within a limited number of years nor, as the Report says, to do so on the principle of "one Act, one subject".
The Government will continue to develop the explanatory material which they already prepare at the pre-legislative, legislative and post-legislative stages. Full account must be taken of the different types of legislation. The House will have no doubt noticed that in recent years explanatory material has greatly developed, and also explanatory material prepared for Parliament itself has increased. Your Lordships will have noticed that the amount and helpfulness of Explanatory Memoranda accompanying Bills has increased and been very valuable.
As to the Chapter in the Report on fiscal legislation, the Treasury Ministers and the various revenue Departments recognise the value of the objectives underlying Recommendations 73, 75, and 77, and that group of recommendations is still being considered by the Departments concerned. The Committee suggested that there should be set intervals of time between different stages of Bills. The Government fully recognise the need for proper intervals between the stages of legislation, and the effect of this on the eventual quality of legislation. But I am sure that the House will recognise that circumstances arise when these intervals must, I fear, remain a counsel of perfection.
Some of the recommendations which fall to the Government's responsibility will be considered by the Statute Law Committee. Two important recommendations I have in mind are 108 and 109 in which the Committee propose that the Statute Law Committee should keep under continuous review the 964 structure and language of the Statutes and the action taken on the Committee's recommendations, and that it should report to Parliament periodically. Clearly, the first step must be to invite the Statute Law Committee to express its views of these important matters. Happily the Committee will in fact be taking the problems in this field into consideration at its meeting in two days' time. That is not "instant reaction" it is a happy coincidence that the Statute Law Committee is meeting on Friday.
The Government have considered the recommendation in the final chapter on the need for a new interpretation Act, and fully accept the need for legislation in this field. We shall be discussing its potential scope with the Statute Law Committee. I should also mention that the Statute Law Committee already has under its eye the recommendations in the Report on the application of computers to legislation. These are being looked at by a sub-committee—not, I suspect, with too romantic or, I was going to say, glazed eyes, but that might be a consequence of studying the subject, considering the use of computers in relation to the law generally. The Government's attitude to this group of recommendations is one of welcome.
I began with a tribute to the Chairman and members of the Committee who have produced this excellent Report. I will conclude by paying a tribute to the work of First Parliamentary Counsel and his office, and his counterparts in Scotland and in Northern Ireland. I am sure that they, like myself, will be very pleased that the noble and learned Lord, Lord Simon of Glaisdale, has so paid that well-deserved compliment to them. In some periods in recent months when illness struck the members of the team, their devotion and sacrifice in still producing the necessary work was indeed impressive and deeply moving in its loyalty, if I may say so, having observed the strains that those concerned were under at that time. I am sure that no one is more conscious than they of the extent to which our legislation falls short of the ideal, and I am sure no one strives more to maintain the generally high standard which I be-believe is still achieved. I am sure that this Report will be of great assistance to them and to all of us, whether as Parliamentarians, Ministers, or even more as 965 administrators who bear responsibility to the citizen up and down the country for the competence, credibility and clarity of the legislation we churn out in Parliament.
§ 4.7 p.m.
The Duke of ATHOLL
My Lords, many of you must be wondering why I am speaking this afternoon when I have had the opportunity to put my thoughts on this subject in the Report of the Committee of which I had the honour to be a member. I think that it is quite useful that members of the Committee should speak in this debate in order to give a little of our background thoughts. As the noble Baroness, Lady Bacon, and I were the only two Members of your Lordships' House on this Committee, I think it is right that this afternoon we should raise our voices. I think we have another distinction in being the only two members on this Committee who were neither barristers nor solicitors, nor senior civil servants, ex-Parliamentary draftsmen, or senior officers of this House. I think that we were put on this Committee to represent the ordinary people, the man in the street. This is something for which I feel this House is ideally suited, although I believe this fact is not always recognised in another place.
Before I started work on this Committee, I did not realise the complexity of the job we were being given. It seemed to me that it must be very easy to prepare legislation, but I was speedily disillusioned with the amount of evidence that we received, first written and then oral. I realised that it was indeed a task which I think the noble and learned Lord the Lord Chancellor described as being beyond Hercules; in which case I feel that I must congratulate my chairman, Sir David Renton, for achieving something which is beyond what Hercules could do, and, not only that, but taking the other 13 members of the Committee along with him, so that we produced a unanimous Report, except for three very minor reservations.
When the Lord Chancellor was halfway through his speech I wrote on my notes, "Charming, but non-committal". I still stick to the first adjective, but if I may say so with all due deference, in the second part of his speech he was much more "committal", if that is the right word, than I had dared hope; he really 966 gave us grounds for great expectations and made me, at any rate, feel that our work might not have been in vain. Perhaps this will be the Report of one Committee which will not be pigeonholed for 25 or even 100 years, by which time another Committee is set up to look at the subject all over again, while nothing has happened in the meantime. I was very encouraged by what the noble and learned Lord said in the second half of his speech and I only hope that the ways he suggested of setting about the various recommendations we made will be pushed forward as speedily as possible.
I am speaking to emphasise three points. First, it is fair to say that throughout the Committee we were very conscious of the fact that, although legisrators deal with Bills for a year or perhaps somewhat less, those who have to use them when they become Acts might have to look at them for perhaps 50 or 100 years. Therefore our endeavours should always be to make it as easy as passible for those who have the final consumption of a Bill, if I may put it that way—those who are affected by it—rather than for the Parliamentarians or, for that matter, for the Parliamentary counsel who produce it. This is very important and I assure your Lordships that it was always the Committee's intention that we should keep in mind the needs of those who must use Bills once they become Acts.
Secondly, we were very conscious throughout our deliberations of the need for speedy consolidation. This has been accepted by all speakers, both in this debate and in the debate on the Report which took place in another place about three weeks ago. Thirdly, we are all agreed on the need for less legislation. So far, I am afraid that this Government have not been a shining example of this; they beat the previous record for legislation in the last Session by about 300 pages, although this is slightly unfair because that included Consolidation Acts and, as I have already said, one of our recommendations is for speedier consolidation.
However, it is universally recognised that we need less legislation, so that what is enacted can be more closely considered at all its stages. I was, therefore, cheered by the debate on 19th November. After Her Majesty had opened this Session of 967 Parliament, four of the five following speakers hoped that there would be less legislation this Session and the fifth, the noble Lord the Leader of the House, went so far as to say he was sure there would be less, and if he cannot see that there is less, nobody can. As he is an honourable as well as a noble man, I am sure he will make certain that we are not inflicted with as much legislation this Session and we should, therefore, be able to give greater consideration to the legislation which comes before us.
I have been disappointed by the fact that both in the debate in the other place and in today's debate here there are virtually no Scottish speakers. I think there was one in the debate in another place, but, so far as I can see, there are no speakers from Scotland in this debate, with the exception of myself; therefore it may not be considered too unfair if I descend momentarily from my pedestal as a member of the Renton Committee and comment on our recommendations for Scotland. I was pleased to hear the noble and learned Lord say that he intended to set up a Select Committee to look into our recommendation for the enactment of parallel Bills where English, Welsh and Scottish legislation can be enacted in tandem. A good example of this was the Children Act, to which the noble and learned Lord, Lord Simon of Glaisdale, referred in a different connection and which we passed last Session. As wedealt with page after page of Amendments that applied only to Scotland, I remember thinking how useful it would have been if we had in operation some procedure such as is suggested in our Report. My noble friend Lady Elliot of Harwood, who was the main protagonist on that measure, on the Scottish side, could have had all her fun, if that is the right word to use, in a Select Committee, and those noble Lords who knew nothing about Scottish law and who were not interested in children's legislation in Scotland could have been getting on with some other business.
Another recommendation which I commend—as I cannot see who else will commend it—is that if possible there should be a Scottish lawyer in this House to speak for the Government. We recognise in our Report that he need not 968 necessarily be a Law Officer, but I am sure it would be useful if there was a lawyer from Scotland, a member of the Government, in this House. On the Committee and Report stages of complicated Bills that apply to Scotland we suffer acutely from this lack, and noble Lords will recall how we appreciated having the Solicitor-General in this House between 1968 and 1970.
As a member of the Committee, I should like to say how grateful we were to everyone who gave evidence before us, and particularly to Sir Anthony Stainton, the First Parliamentary Counsel, who was extremely patient with us, and to all the other Parliamentary counsel and draftsmen in London and Scotland. I echo what I am sure all noble Lords taking part in this debate will say; that is, that we are deeply indebted to the noble and learned Lord, Lord Simon of Glaisdale, for getting an afternoon for this debate and for initiating it in such a felicitous way. I hope I have not spoken for too long. In this connection, noble Lords on the Benches opposite may not have noticed that the lovely electric clock which we used to look at has disappeared from above their heads, presumably because members of the Opposition are always so brief that it is not necessary to have it there, whereas those who speak from the Government Benches appear still to need this aid to short speeches.
§ 4.18 p.m.
§ Baroness BACON
My Lords, we are grateful to the noble and learned Lord. Lord Simon of Glaisdale, for raising this matter; but as a member of the Committee I am perhaps even more grateful because it means that your Lordships can debate this subject. This House has contributed a great deal to this Report, and I am not now referring to the fact that the noble Duke, the Duke of Atholl, the Clerk of the Parliaments, Sir Peter Henderson, and myself were members of the Committee, but to the amount of valuable evidence which was submitted by Members of this House. If we look at the list of witnesses we see that 14 Members of this House gave evidence and six of them gave oral evidence. The whole of this evidence, written and oral, was among the most valuable we had submitted to us. Being a member of this 969 Committee was certainly an experience. It says in the Report that we met on 47 occasions over a period of two years. I must say that we seemed to have rather more than 47 meetings, as indeed we did because there were various sub-committee meetings as well. In any event, this figure of 47 meetings in two years gives no indication of the long and arduous task we had.
The meetings were very long and required great concentration. I should like to pay tribute to the Chairman of the Committee, Sir David Renton, without whose patience and persistence we should never have got through some of our meetings. It may not have been the most interesting Committee on which I have ever served but it was certainly the most instructive. I learned a great deal, including a new vocabulary. As the noble Duke has just said, we were surrounded by six QCs, ex-Parliamentary Counsel, officers of this House and ex-Permanent Secretaries and—not to be over-modest—I feel that we did a good job in keeping their feet on the ground.
At first our task seemed an impossible one. As my noble and learned friend the Lord Chancellor said, no similar inquiry had been undertaken for a hundred years: how were we to produce a report which would rectify the confusion of a century? Looking at our terms of reference, far from considering them too wide we felt that they were not wide enough. I know that all committees find their terms of reference too narrow and ask for wider powers, but we wanted our powers widened for a very good reason. The Select Committee on Procedure, which had recommended our appointment, suggested that our terms of reference should be:To review the form, drafting and amendment of legislation and the practice in the preparation of legislation for presentation to Parliament.If one compares those words with our terms of reference, it will be seen that our terms of reference would exclude some of the things which the Select Committee envisaged.
We therefore made an arrangement with the then Prime Minister, Mr. Heath, that if there were any matters outside our terms of reference, such as ministerial responsibility and the office of the Parlia- 970 mentary draftsman, on which we wished to make recommendations our Chairman would write a private letter to the Prime Minister. I shall say more about this later, but I am sure your Lorsdhips will like to know that the letter which our Chairman wrote on our behalf to the then Prime Minister, Mr. Wilson, and the reply which he sent to our Chairman are not only in the Library but also in the Printed Paper Office for the benefit of those who wish to refer to them.
I must say I feel that it would probably have been better if we could have dealt with these matters as part of our Report because, after all, the correspondence has now been made public, so it amounts to the same thing. One disadvantage of having to do this in a private letter concerns the evidence of witnesses, because we had to tell them that certain matters were outside our terms of reference. We soon realised that there was no magic wand which one could wave and no single simple solution to the problem we had been given. The Committee produced 121 recommendations, some big, some small, some short-term and some long-term. We believe that all of them would help towards better legislation which would be simpler and easier to understand. It is not my purpose here today in a short speech to explain the whole Report and all its recommendations, but there are a few observations which I should like to make on certain of those recommendations.
A Bill which comes before both Houses of Parliament is intended for several groups of people. First of all, it is for the legislators who arc the first to deal with it. Then it is for the users of the Act who have to refer to it later on and perhaps for the courts which have to interpret the Act. All the recommendations are important, but the Committee decided that the complete Act was more important than the Bill—in other words, that the ultimate user of the Act must take priority over the legislators in Parliament. Even so, it is essential to make it easier for the legislators to understand the Bills which they are considering and amending. Members of both Houses of Parliament find difficulty in understanding the Bills which come before them and, as an ex-Minister, I can say that Ministers also have such difficulty. We promulgate policy in a Department or a Ministry; 971 we next discuss that policy at Cabinet level and the policy then goes to the legal department of the Ministry in question and finally to the Parliamentary draftsmen.
The Parliamentary draftsmen are extremely skilled and they are overworked. They are enormously able at making certain that, in legal terms, Bills carry out the policy of Ministers. The only trouble is that when a Bill gets back to the Minister it may not look to him at all like the memorandum of policy which he sent out to the Parliamentary draftsmen. I believe that one of the kernels of the whole problem is to see why this happens. Sometimes it may be that the instructions from Ministers on policy are not as clear as they might be; sometimes Ministers may not give the Parliamentary draftsmen as much time as they would like to consider Bills. But even when, occasionally, these factors do not apply the Bill may come back in a form which the Minister cannot recognise as giving effect to his policy. It is sometimes difficult for a Minister to find which part of the Bill refers to his policy.
There were times in another place when I was able to explain my policy to the House but when I found it very difficult to explain the Bill. I sometimes had to get somebody from the Department to explain the Bill to me. We have seen this here in your Lordships' House as well. A year or so ago the noble Viscount, Lord Colville of Culross, who is a great expert in these matters, explained why a certain part of, I believe, the Guardianship of Minors Bill meant what it really did mean. On that occasion, even the noble and learned Lord, Lord Simon of Glaisdale, found it difficult to know exactly what the Bill meant. On the other hand, I will say that when a Bill comes back from the Parliamentary draftsmen, it is legally certain. Very few mistakes are made by the Parliamentary draftsmen in putting down in legal, though not always understandable, terms what the Bill means. Here we have certainty as opposed to simplicity and clarity. What we want is to have certainty, simplicity and clarity together, but certainty can sometimes lead to complexity, and that was the problem we had to deal with.
972 I believe that the chief reason why Bills come in a complicated form is the state of the Statute Book. There is need for reference to previous Acts and, when we find those previous Acts, we may discover that we have to refer to even earlier Acts. Sometimes one can go back nearly a century to find what a particular Bill means. If we could wipe the slate clean it would be so easy. The easiest Bill with which I ever dealt was when I was in Opposition in another place. It was the Police Act 1964, and it was discussed in Standing Committee in 1963. This Act repealed every other Police Act on the Statute Book, and so it started from scratch. Thus it was very easy to see what the Bill meant. It was also very easy for Members of the other place—and of this place, I presume, when it got here—to table Amendments to that Bill.
Mention has been made of the referential and textual Amendments of Bills. The Committee comes down quite firmly in preferring the textual Amendment, where this is possible, although we are told that it is not always possible. But we are pleased that this course is now being adopted in some Bills. I hope that this will continue to be so, because as the noble and learned Lord, Lord Simon of Glaisdale, said, it helps consolidation.
One of the greatest contributions towards solving this whole problem which we had to consider would be the speeding up of consolidation. Here I should like to pay tribute to the noble and learned Lord, Lord Simon of Glaisdale, for his work as Chairman of the Joint Committee on Consolidation. Together with the Law Commissioners, that Committee has speeded up this work. But as we say in our Report, we are running and yet standing still, because as consolidation is taking place more legislation—not consolidated—is going on to the Statute Book. While this work is being done there is still this backlog of work to be tackled. What we need here is more draftsmen for consolidation. But as we have a shortage of draftsmen generally, it is very difficult to take them from the work they are doing in the preparation of Bills in order to help in consolidation. But just as it is easier to consolidate Bills which have the textual Amendment system, so I am sure that the noble and learned Lord, Lord Simon of Glaisdale, 973 would agree that it is easier to use the textual Amendments in Acts which have been consolidated; so in fact the system works both ways.
I will not say much about the aids which we propose for better understanding of the Bills. We have recommended several. I will not go into the Explanatory Memoranda et cetera. But one thing we must remember is that while aids are of enormous help to people in both Houses of Parliament and to the public outside, they are not the Act, and in any future litigation what counts will be the terms of the Acts, and not the aids or explanatory material. That I believe must be a note of warning.
With regard to computers, I must admit that I do not know in detail how they work, but I was very impressed by the demonstrations we saw. It is clear that they can be of great use, not only for those matters within our terms of reference, but useful also for Members of Parliament in that they can save time in laborious search of previous Acts. They could also be of use to Parliamentary draftsmen in drawing up Bills. As I have said, there are certain matters out side our terms of reference on which we wish to comment. One was the organisation of the Office of Parliamentary Draftsmen, and the training of Parliamentary draftsmen; and the other was the answerability to Ministers for the Office of the Parliamentary Draftsmen. Those who have already spoken have referred to the shortage of trained draftsmen. We received evidence from Professor Driedger, of Canada, who runs the School of Legislative Drafting, and we were very impressed by the account he gave us on this matter. This is something at which the Government must look.
With regard to answerability, we understand that the position is that the Prime Minister is in general charge of the Parliamentary Draftsmen's Office, and we should not wish to change that. But we are not quite sure who would answer in Parliament for details of this work. In reply to the letter we sent on training, the Prime Minister agrees with most of our proposals. But on ministerial responsibility he thinks that there should be no change, which we considered to be a little disappointing. I should like to see a Cabinet Minister responsible for the 974 language and structure of legislation in general—not particular Bills. The noble and learned Lord, Lord Simon of Glaisdale, suggested that this could be done by the Legislation Committee of the Cabinet—if one can talk about that. The noble and learned Lord has spoken about it, so I suppose I can. Like him I have been a member of this Committee, but unlike him, I do not think that it is the appropriate Committee to consider this matter. This Committee is overworked and its members are not always the same people. Perhaps the Lord Chancellor has this power already, but we should like to see my noble and learned friend having control so as to keep under review the general language of Bills.
I am not quite sure what the Solicitor General meant in the House of Commons when he talked about Law Ministers being responsbile for this, but I now understand the distinction between Law Officers and Law Ministers, in that the noble and learned Lord who sits on the Woolsack is a Law Minister, but not a Law Officer. I have now got that clear, and so I understand from that that he will have some of the responsibility for this work. In another place the Solicitor General said that the Lord President is to set up a review into procedure. I am not sure whether this is for the House of Commons only, or whether it will also include the House of Lords.
My Lords, in conclusion I should like to pay another tribute, and that to the Secretary of the Committee, Mr. Angus Macpherson from the Cabinet Office, who so brilliantly made a cohesive whole of our meetings, ably helped by his assistant secretary, Mr. Robert Cummings. Sometimes there is criticism of civil servants, but we have a first class Civil Service, members of which can do jobs like this, and we ought to be really proud of them.
Some of our recommendations are capable of immediate implementation; some will take longer. But I hope that the Government will take action. Many people have spent much time on this Report, and a great deal of effort has gone into it. I trust that in five or 10 years' time this Committee is not on the annual "pigeonhole" list of my noble and learned friend Lord Gardiner. I hope that the Report will be acted upon long before that time, and then we shall 975 feel that our tremendous labours have not been in vain.
§ 4.37 p.m.
§ Lord AIREDALE
My Lords, I feel overawed in taking part with noble and learned Law Lords in a debate on a legal subject. I am afraid that I can offer only random thoughts that have arisen from reading this most interesting Report. I suppose that the necessity for a study of the preparation of legislation could not be better stated by implication than in the opening words of the judgment of the noble and learned Lord, Lord Edmund-Davies, in the recent case of Daymond v. South West Water Authority, in which judgments were delivered on 3rd December. The noble and learned Lord started his judgment with these words:Section 30 of the Water Act 1973 is a deplorable piece of legislation. Those charged with the duty of applying it appear to have little inkling as to its import, for until recently they thought it has a meaning completely opposite to that for which they now contend.My sympathy goes out to the draftsman responsible who has to read those words. But it seems to me that the strain on the shoulders of the draftsman would be lightened if he could feel that the attention of the court did not have to be riveted solely upon the words of the Act of Parliament, but could, in appropriate cases, extend a little beyond.
This aspect of the matter was touched upon by the noble and learned Lord, Lord Kilbrandon, in his judgment in this same case. The noble and learned Lord mentioned the manner in which an Act of this kind, the Water Act 1973, is prepared; that is, by numerous consultations between the representatives of the Water Boards who will have to administer the Act and the officials of the appropriate Government Departments. The noble and learned Lord then went on to say:this, of all cases, is one in which there could have been some source or sources upon which the courts could draw, in the exercise of their constitutional duties to interpret legislation, over and above those to which custom, or vis inertiae, has arbitrarily limited them.… It is not merely a crude question whether Hansard should be quotable in judicial proceedings: there are several other expedients which have been discussed and recommended.Later, the noble and learned Lord said:It is certain that there are other and more satisfying ways of arriving at the meaning of 976 an Act of Parliament, or any other document, than by prolonged linguistic and semantic analysis. Until they are adopted, interpretation may be a hit-or-miss affair, and often very expensive".On the question of expense and costs in cases where the object of the litigation is to discover the meaning of legislation, I hope that perhaps we may hear later from the noble and learned Lord, Lord Gardiner, in amplification of his speech in the debate on the humble Address in reply to the Queen's Speech, in which the noble and learned Lord referred to this topic. My Lords, as to two small matters that have occurred to me in reading this Report, first there is the question of typography; that is, whether Acts of Parliament should be allowed to use devices such as capital letters, heavy type, italics, underlining and matters of that kind.
The Renton Committee are, on the whole, against this, and I am pleased to note that; but what I would say is that, if this is to apply, then the draftsman must not cheat by using over-emphatic language in order to try to get round the inability to use underlining, and so on. Some years ago there was before the House a Public Bill which contained a clause which said that so-and-so shall happen, "if, and only if," certain circumstances obtained. I ventured to put down an Amendment that, "if, and only if", really meant, "only if". After all, you can go on emphasising for ever if you want to. You can say, "If, and only if, and in no other circumstances"; then you can say, "Whatsoever", and you can go on and on. My Lords, I would suggest that, if the draftsman does this, he is really cheating, and he ought to restrain himself and not use over-emphatic language in drafting the Statutes.
My Lords, finally, I was very pleased to hear the noble and learned Lord the Lord Chancellor saying that efforts are to be made to harmonise the form in which Amendments to Bills are put down in the two Houses. The Committee point out in paragraph 18.23 that there are at present three forms in which Amendments are set down. In another place the forms in the Committee stage and the Report stage are different, and in your Lordships' House a third form exists which is different from the other two; and I must say I was pleased that 977 the Committee suggested that the form adopted in your Lordships' House was superior to the other two. I dare say that the officials of the two Houses are well acquainted with all this and are able to work the system, but I am thinking about persons and bodies outside Parliament who wish to put forward Amendments and who wish to be meticulous and get them down in exactly the right form. It is really too much to expect them to master three different ways of expressing the same thing in Parliament; so I was very pleased indeed to hear that this matter is to be harmonised.
There are, of course, certain things that we do differently in the two Houses, such as voting "Content" or "Not-Content" or "Aye" and "No", which are interesting and no doubt have interesting historical backgrounds, but I do not think this matter of the form of Amendments falls within that class. So I close on the happy note that I was pleased to hear from the noble and learned Lord the Lord Chancellor that there is to be harmonisation on this matter.
§ 4.46 p.m.
§ Lord TRANMIRE
My Lords, as the Chairman of the Select Committee on Procedure that recommended the Renton Committee's appointment, I should like to voice my congratulations to Sir David Renton and his colleagues for their excellent Report, but I am afraid my congratulations are tempered with a slight amount of disappointment, for which they are not responsible. As the noble Baroness, Lady Bacon, explained, we had recommended a wider remit for this Committee; and, as the Committee explain in paragraph 1.2 of their Report, the excluded areas—policy formulation and the management of the legislative programme—were important and indeed vital matters in relation to the problems to which the Committee were trying to seek a solution.
It is, as the noble and learned Lord, Lord Simon of Glaisdale, said, a hundred years since the last inquiry into this subject, and therefore it was vital that there should be no restriction placed on this inquiry. As it was, it was rather as if a bandage had been placed over the eagle-eyes of the expert members of the Committee; and I deeply regret it. It may 978 well be that it was the fault of my own Committee's recommendation, when we recommended that this should be examined by a Departmental Committee. It may well be that policy formulation and the management of the legislative programme are matters which should be looked at by a Select Committee rather than by a Departmental Committee. If that is so, then it is not too late and I would urge the Government to appoint a Joint Select Committee to examine whether policy formulation or the management of the legislative programme affect in any way adversely the simplicity and the clarity of Statute law. I hope that the noble and learned Lord the Lord Chancellor will take that suggestion into consideration.
My Lords, of the recommendations, I want particularly to pick out Recommendation 112, which the noble and learned Lord the Lord Chancellor said he looked upon favourably. It is 86 years since there has been an Interpretation Act, and therefore it should have been brought up-to-date long since. I see the way that this recommendation would work. It might well be that there would be a sort of statutory dictionary, and words that are defined in that dictionary could not be used in any other Statute with a different meaning. If one were to get that, a good deal of the confusion in Statutes would be avoided. But to my mind, my Lords, paragraph 1.10 goes to the heart of the matter, and I should like to read this paragraph to your Lordships. It says:We must add that little can be done to improve the quality of legislation unless those concerned in the process are willing to modify some of their most cherished habits. We have particularly in mind the tendency of all Governments to rush too much weighty legislation through Parliament in too short a time with or without the connivance of Parliament, and the inclination of Members of Parliament to press for too much detail in Bills.This is the real problem that the whole country faces in this matter. I think that if we go on in the way we are going, with the spate of legislation that Parliament is pouring out, in the manner, in the form and at the speed it has taken place in recent years, the Parliamentary machine will break down and it will no longer be reasonable to expect the citizens not to be ignorant of the law.
979 My Lords, this leads me to a more radical approach to the whole of the question. As I see it, Westminster is really exceeding its functions in this matter of legislation. The nation is suffering from two distressing diseases; first, too large a part of the Gross Domestic Product is being taken by public expenditure and, secondly, too large a share of manpower is being taken by central and local government. The nature of legislation is a factor in both complaints. The complexity of the law, giving wide powers to Ministers, requires a very large staff of civil servants to help him in drafting the laws, the regulations and the circulars. In the local authorities, who are acting really as rubber stamps of the Minister, excessively large staffs are required in their attempt to interpret the will of Parliament and the will of the Minister as expressed in the Statutes, the regulations and the circulars. A letter in the Daily Telegraph today from Mr. Geoffrey Drain pointed out that in the last five years there have been 68 Acts of Parliament and that from those 68 Acts of Parliament 1,000 circulars have come down to the local authorities to interpret.
This, I believe, is what we are suffering from at the present time. It is a false pattern for democracy, and all Governments—all recent Governments—are equally to blame for it. I am not making any Party point in this. It is not only this Government but the last Government before them who are equally to blame. I think it comes from an attempt to secure uniformity throughout the whole of the country, and this is the reason why we have the detail in Statutes. I admit that in fiscal legislation that may be necessary; but I believe that we must come to accept at the present time that a certain degree of variety in the interpretation of the will of Parliament in the several parts of the country is good for democracy and will stimulate greater keenness in local government.
Therefore, my Lords, what I would suggest is that the essential cure for this is devolution of power to responsible local councils, provincial assemblies or national assemblies, as the Scots would prefer me to put it. Then it will remain the function of Parliament to express in 980 concise language the will of each section of the law that they are passing, and it will be for the subordinate legislators to work out how the will of Parliament can be applied in their area. That would undoubtedly mean that more care than ever would have to be concentrated on the drafting of the Statute when it was expressing the will and purpose of Parliament as expressed in that Act. But it would mean that the function of examining subordinate legislation and statutory regulations could be the function of the subordinate legislatures where they could be debated on their merits—which unfortunately at the present time very rarely happens in either House of Parliament.
I believe that this is the only way in which we can make the Parliamentary machine work without it being clogged up (as I have watched for many years) and year by year more powers being usurped by Central Government from the local governments, with the resultant chaos. I think that the time has come when we have got to turn back the clock, as it were, to hand over more powers to responsible local authorities and subordinate legislatures, and to leave ourselves with what should be our main activity; that is, the drafting of the purpose of legislation in clear and simple language.
§ 4.57 p.m.
§ Lord MORRIS of BORTH-Y-GEST
My Lords, I should like to join with other noble Lords in thanking my noble and learned friend Lord Simon of Glaisdale for introducing this debate this afternoon and giving us the opportunity of discussing the extremely important and valuable Report of the Committee under Sir David Renton. I am sure that your Lordships were very glad that two members of the Committee should have taken part in this debate, the noble Duke, the Duke of Atholl, and the noble Baroness, Lady Bacon, and that they should have given us the advantage of hearing their views.
I think that it must be an undeniable fact that a considerable proportion of judicial time—and I refer more particularly to Appellate courts—is occupied on the construction of Acts of Parliament, sections of an Act or words in that Act. If the doubt is considerable, it is very likely that a first decision will he challenged, that the case will go to the Court 981 of Appeal; and, again if the doubt is considerable, it may well be that it will be brought to your Lordships' House; and in these cases where there is doubt the difficulties are considerable. I remember hearing the late Lord Goddard say that if after a judicial decision in this House there was a possibility of a further appeal to some body of seven judicial persons, it would be quite likely in many cases that the majority view in this House would be displaced.
All that points, as has been already said in this debate, to the supreme importance of having certainty and clarity in the first place. Nearly all well-disposed persons are anxious to conform to the law. They wish to know what are their rights, what are their duties and what are their responsibilities. Furthermore, they all wish to avoid the expense of litigation. Those of us who have been engaged in judicial work have had from time to time to grapple—and no other word is appropriate—with the problems of interpretation. In recent years, the courts had very many cases concerned with the Limitation Act of 1963. One case came to your Lordships' House when five Law Lords, with the best will in the world, were not able to reach unanimity of view as to what Parliament had enacted. In saying this, I should like to add that nothing in my experience has in any way diminished my admiration for the work and skill of the Parliamentary draftsmen. We need them, we rely upon them and we must rely upon them. Our approach—and I think this was the approach in the speech of the noble and learned Lord the Lord Chancellor—must be to assist by relieving them of some of the pressures put upon them.
I had the privilege for some years of being Chairman of the Joint Committee on Consolidation. No one who has been Chairman or a Member of that Joint Committee could fail to have immense respect for the skill, learning and expertise of the Parliamentary draftsmen. I am therefore glad that the Renton Committee decided definitely in their Recommendation No. (3):There should be no large-scale transfer of drafting work away from the Government draftsmen.Speaking for myself, I am sure that that is right. You could not get on with any other system. Yet, with all that skill, 982 it is possible from time to time to have some sections of Acts which baffle exposition or permit of more than one meaning. As the noble Lord, Lord Tranmire, pointed out, the terms of reference of the Renton Committee were limited. The document is called The Preparation of Legislation. But the remit to the Committee was in the limited terms of reviewing the form in which public Bills are drafted, excluding considerations of matters relating to policy formulation and the legislative programme. Therefore, it follows that no questions arose before the Renton Committee as to the methods of interpreting an Act of Parliament once it has been enacted.
This House, in a recent case (I think called the Black-Clawson case) considered the problems of interpretation carefully, and there were five learned and helpful speeches dealing with that matter. Parliament could however, on occasion, enact that, in construing a particular Act, reference could be made to some Report of a Commission or Committee, or to some explanatory notes which had been before Parliament. If that were done, I suggest that must involve that Parliament has given express agreement to the contents of any such document. Without a provision in a Bill or an Act I think it inappropriate to refer to a Report for any purposes of interpretation. In so far as a Report sets out a statement as to the existing law, or a statement as to what is called the mischief to be aimed at, it may be valuable and reference to it may simply be equivalent to referenece to a textbook. For purposes of interpretation, there ought not to be a reference to any Report unless there were exceptional cases in which Parliament thought it right specifically so to enact. That would happen only if an Act were a short one, and if the Report that gave rise to it was also a short one, so that it could be said that Parliament had fully endorsed all that was in the Report.
There was the Animals Act in 1971. It is a short Act and there was a Report before it. Some of us thought that that was perhaps an exceptional case in which it might be enacted. I submit that it would have to be definitely enacted that there could be a reference to such a Report. The whole question arises as to whether we could devise some entirely new form of drafting. Could we or 983 should we legislate merely by setting out statements of purpose or setting out guidelines and leave matters to be worked out by the courts? For my part, I should not think at this juncture in our history that that is a practical approach. The approach in European law has been entirely different, and the Report deals with that at page 51 in paragraph 9. It summarises the position by saying:European law is basically very different from English law, founded as it is on another legal tradition deriving largely from Roman law, later developed to suit modern needs by, for example, the Code Napoleon. The style of the Code is illustrated by many of the codifications of the nineteenth century.We have developed on entirely different lines. We have the Common Law gradually built up and interpreted by judges. We have never indulged in a complete or wholesale codification. Our law has nothing like the Code Napoleon as its base or foundation. Our Statute Law has often come about in order to amend the Common Law. Sometimes an amendment can be stated in general terms—perhaps the Occupiers Liability Act of 1957 would be an example. But that Act was professedly an Act to amend the Common Law in certain respects. It was Dot a complete codification. Its first section states that the rules enacted by the two following sections were to have effect in place of the rules of the Common Law. So I should not think it appropriate for us to seek to move entirely away from our traditional system and to seek to pick up and incorporate the European system. It may well be that a fasciculus of sections could be prefaced by or introduced by some statement of purpose: that would be a valuable aid to understanding and construction. That is approved of by the Report at page 150, recommendation No. (15). I consider the aim should be always to secure that a Bill which is ready to become an Act should, in the matters with which it deals, be a complete, self-contained end product.
It is for Parliament to decide what it wants to do, and then it needs the aid of a skilled draftsman to translate decisions into words. I regard the position as being rather analogous to that of the owner of land who wants to build a house. He decides what style he wishes to have; he considers its size, its location, the number 984 of rooms and, generally, how he would wish the house to be. When he has done all that he must refer to an architect and get the architect to translate his ideas on to paper, and with precision, in order to decide whether they can be put into effect. So I think it should be, and is, with legislation.
Debate is so important as to policy—it is necessary as to policy—but debate is not a good process for drafting. Once a decision is reached as to policy, there must be an expression of policy in words. The English language is, I think, a fine instrument. It can be used to reveal intention and to express meaning. It is rich; it is flexible—though, with respect, I entirely agree with what the noble and learned Lord the Lord Chancellor has said, that it is possible for the English language to be used to obscure meaning. But equally, if that takes place, may it not be that somebody who scrutinises it, somebody who is a master of expression or exposition, would be able to expose the obscurity and substitute clarity?
This leads me to express general agreement with what the noble and learned Lord, Lord Simon of Glaisdale, has said with regard to the scrutiny of drafting. May it be that because of pressures upon us, my Lords, we do not always give scope or allow time to our experts, the draftsmen, to bring their skill to bear? Thus, after the debate is over and after all the Amendments have been considered and decisions reached as to policy, is it not possible to have, even at that late stage, some scrutiny of wording, mere scrutiny of drafting? My noble and learned friend Lord Simon of Glaisdale suggested that there should be some scrutiny at an early stage. For my part, I think we should be imposing too much on any noble and learned Lord Chancellor or upon our Law Officers if we asked them, in a legislation committee, to turn themselves into those who are to scrutinise the actual words, going word by word through a Bill similarly at the end of the debate. But may it not be possible—and I wonder whether the Government would be able to think again on the lines proposed—in many cases at the end of debate and before the Bill is ready to become an Act, for there to be a period of scrutiny, not with regard to intention or policy, but to see whether the words used 985 are words that are as clear as it is possible to make them?
I observe that the Renton Committee felt that this proposal of a scrutiny stage towards the end of the process was not possible; and anyone who heard the debates in your Lordships' House on the Land Community Bill will remember that time was very much in short supply. It did not seem as though, at the end of all the debates here, which took place at the end of a Session, there would then have been opportunity for a period of scrutiny. As our American friends say, everything was being worked to a very tight schedule. But must this always be so? I would ask that some reconsideration might be given to that proposal of my noble and learned friend, simply with the desire to see whether or not there is some obscurity.
We have probably all had the experience of putting some thoughts on to paper, and have believed that what we have written has expressed our intention. We have shown the paper to someone else, and that person has been able to detect some obscurity that we ourselves have not seen. A case arose not very long ago where a ship discharged oil, or a mixture containing oil, in a prohibited area. There was a provision in the Oil in Navigable Waters Act 1963 that in such an event the owner or master of the ship should be guilty of an offence. Both the owner and the master were prosecuted and they said: "But look at the words—'owner or master'. You cannot prosecute us both. You must elect to go against one or the other". "No," said the prosecution; "'or' is used conjunctively and not in an alternative or exclusionary sense". And, my Lords, that was the decision. But I wonder whether that journey to an appellate court was really necessary. Might not somebody, had there been a stage for scrutiny of drafting, have suggested that doubt could be eliminated?
There was a recent case in regard to the payment of value added tax on television sets, concerning the words "in cases where goods or services are supplied". Did those words refer only to cases where goods or services were for the first time supplied after the passing of the Act, or did the words cover cases where the supply may first have been earlier but where, in the period after the passing of 986 the Act, the goods or services were being supplied? My noble and learned friend Lord Simon of Glaisdale has already referred to the Race Relations Act, which provided that:It shall be unlawful for any person concerned with the provision to the public or a section of the public (whether on payment or otherwise) of any goods, facilities or services, et cetera, to discriminate…".What was the meaning of "a section of the public"? Are the members of a well known West End club a section of the public, or are they not? My noble and learned friend has said that a point was raised in debate which would have solved the question that arose for judicial consideration.
Again, I would so much endorse what he said—that if a question is raised in debate and an answer given, it would save an awful lot of trouble in the future if, in appropriate terms, the answer could be incorporated and introduced into the Bill. Sometimes assurances are given in Parliament as to how the Bill will be operated. Those assurances are given in good faith and will be carried out in good faith, but in the future there may be some doubt. Is it not better, where ever possible, for an assurance to be formulated in the wording of the Bill? Somebody once said that if a man tells you that his word is as good as his bond, always take his bond. The noble Lord, Lord Airedale, has referred to a recent case arising out of the Water Act. Though no criticism may be involved of anyone in these various illustrations, do they not reinforce the plea that anything that can be done to scrutinise drafting—after all decisions of policy are made—should be pursued?
I hesitate to refer to a matter which was debated in your Lordships' House some time ago, but the phrase "industrial democracy" was used then. I have an idea what that denotes and, to the extent that I have, I am very much in favour of it; I feel that it is a splendid idea. But I have wondered whether, if the point were put to a judge and he had to decide whether what was done would conform to industrial democracy, he would be sure what Parliament meant. Perhaps I am indelicate in even referring to this matter, because both Houses debated it and in the result there was a decision that that phrase should be incorporated.
987 Finally, may I summarise my view? It is that it should be the aim of all concerned with or interested in a measure which is before Parliament to ensure that the end result will be a finished product, complete in itself to the greatest extent possible, which, also to the greatest extent possible, conveys its provisions without ambiguity. Parliament is supreme, and how right that is! Parliament must use the English language, and in using it Parliament must surely both say what it means and mean what it says. But Parliament needs the aid of skilled draftsmen. I am sure that all of your Lordships were very glad to hear what the noble and learned Lord on the Woolsack said as to the concern of Her Majesty's Government to ensure that there should be a good supply of these skilled men. They ought not to be in short supply, and they ought not to be so pressed that they are frustrated in giving their talented aid.
§ 5.23 p.m.
§ Lord GARDINER
My Lords, I must first thank the noble and learned Lord, Lord Simon of Glaisdale, for giving us the opportunity this afternoon to discuss this important Report, and I should like to associate myself with everything which he said about the Committee. All those of us who have sat on committees know that that means an immense amount of work. Forty-seven meetings for a committee of this size is a lot, and I gather that my noble friend Lady Bacon could add to that the work of sub-committees. We are all. I am sure, very greatly in the debt of the Committee. I should also like to associate myself with what the noble and learned Lord, Lord Morris of Borth-y-Gest, has said about Parliamentary draftsmen. We all know that they are men of the highest intellect who work very long hours, very frequently under great pressure, and I am sure that we are all greatly in their debt.
This Report concludes with 121 recommendations and conclusions and, obviously, one must be highly selective. I have had the advantage of reading the written evidence to the Committee of Mr. Francis Bennion. Mr. Bennion was the founder of the Statute Law Society, and was himself a Parliamentary draftsman for some years. Of course, the Statute Law Society has itself published, under 988 the chairmanship of my noble and learned friend Lord Stow Hill, some very interesting reports in this field, and I am very glad that we are to hear from my noble and learned friend later. Mr. Bennion took the view that there were four things which mattered most, and I think he was right. First, was the question of textual amendments instead of referential ones; secondly, the Members of both Houses should be treated better in having put before them textual or other documents which would enable them the better to understand the effects of the legislation before them; thirdly, the whole question of the Statute Book, and fourthly, the whole question of responsibility for the Parliamentary Counsel's office.
If I may say a word about those four points, I can deal with the first, textual amendments, very shortly because there is no doubt that the whole weight of the evidence before the Committee was clearly in favour of these. Mr. Bennion had himself suggested a one-sentence Standing Order to be made by both Houses:A Bill amending any enactment shall do so by directly altering its text, unless this is impracticable.The Committee seemed to think there might be some difficulty with the word "impracticable", but they ended by saying in Conclusion 41:The present practice of amending legislation textually wherever convenience permits should be applied as generously as possible",which would, I think, meet with almost unanimous support.
Secondly, as to aids to Members of Parliament, the Committee ended by saying in Conclusion 45:Where a Keeling Schedule or a textual memorandum can assist Members of Parliament or others in understanding textual amendments, such a Schedule or memorandum should he provided whenever it is reasonably practicable to do so.My interest in the Statue Book goes back rather a long way. There is, of course, always a danger when somebody of my age gets up to speak that he will tend to reminisce—and I remember a night in 1947 when the Society of Labour Lawyers, or the Haldane Society as it was in those days, was having its annual dinner. I was only a junior counsel, but our guests were to be our President, Sir Stafford Cripps, and the Lord Chancellor, Lord Jowitt. As chairman I had to make 989 the speech to the guests to get them up, and I devoted myself entirely to the Statute Book. I pointed out that there were two great defects of the Statute Book. First I mentioned the enormous amount of sheer junk that it contained—old Acts of Parliament which, whether technically obsolete or not, had to be reprinted every 20 years when the Statutes at large were republished and which served no useful purpose whatever; and, secondly, I asked when we would publish in one Act all the Acts dealing with the same subject.
I pointed out—to take a fairly simple branch of the law—that if, for example, you wanted to get married and wished to know what was the statutory law on this subject, there were 40 different Acts of Parliament starting with one in 1540 followed by another in 1548, dealing simply with the law of getting married, which ought to be very much simpler than the law of getting unmarried. Then, with the impetuosity of more youth than I have now I demanded to be told how long this nonsense was to go on. The Lord Chancellor did not say much because he had come prepared with his own speech to make on a different subject, but he said something about the difficulties of Parliamentary time. But he and Sir Stafford Cripps went away and evidently thought about it, because in the next Session we had the Consolidation of Enactments (Procedure) Act—a very ingenious Act which enabled all the work to be done by a Joint Committee and that kept it off the Floor of the House. That got rid of Mr. Bowles.
Since the beginning of the century, consolidation had largely stopped because of Mr. Bowles. He was a Member of the other place who argued, apparently successfully—for only what was called pure consolidation was then allowed—that if in a Consolidation Bill you found one word which was not contained in one or other of the Acts to be consolidated, then, as no two words can ever have the same meaning, that must alter the law. As most Consolidation Bills had something of this kind in them, this more or less stopped consolidation for years.
However, under Lord Jowitt's Act this had the additional advantage of allowing consolidations with minor corrections and 990 improvements. This started up consolidation again and naturally I was flattered when the first Consolidation Bill under this Act was the Marriage Act 1949. I thought that even an after dinner speech sometimes does something!
When I introduced the Law Commission Bill I was anxious that they should have charge of this matter under both heads. They began slowly, simply because they could not find the personnel. I continue to marvel at the way that every year they find more and more Acts to be repealed, because I cannot help thinking that sooner or later they will come to the end of them. When I left Office I put down questions as to how many Acts of Parliament there were when I took Office and how many there were when I left.
I knew that there were about 3,600 public general Acts when I took Office, and I knew that we had enacted another 400 or so. I was told that there were 150 fewer Acts after nearly six years than there had been when I took Office. This is almost entirely due to the Law Commission, both revising Bills—getting the junk off the Statute Book—and consolidation. However, the Report reminds us that still there are about 155 subjects requiring consolidation and about 8,000 pages of consolidation to do. Therefore, I very much welcome what the Committee say and I hope that additional resources may be provided to enable us to get on with both Statute Law revision and consolidation even faster in the future than we have in the past.
This brings me to my last point which I have always thought is the one that matters most and without which I doubt whether many of these revisions will come about. It is the question raised by the noble Lord, Lord Tranmire, and what his Select Committee have in mind; namely, the responsibility for the Parliamentary Counsel's Office. I am not in any way a devotee of what other countries do, although I think that in law, as in commerce or anything else, it is quite sensible to look at what they do because it is possible that if they all do the same thing and you do something different they might be right. I have tried, and from what my noble friend Lord Shepherd said on the occasion when I put down a Parliamentary Question I know that the 991 Government have tried, to find a Western democracy in which Parliamentary draftsmen are not under the control of the Minister of Law, or the Minister of Justice, or the Attorney General. I have been unable to find one and I gather that the Government have also been unable to find one—or if they have, no doubt my noble and learned friend on the Woolsack will tell us when he replies. It is possible that everybody is out of step except "our Johnny" and that we in making the Minister responsible for Parliamentary draftsmen the Prime Minister are the only ones who have got it right. On the face of it, however, it does not seem to me that this is likely to be so.
After some time the Committee thought that the key question was, Who is to be responsible for the recruitment, training and work of the Parliamentary draftsmen? They asked the then Prime Minister whether he would agree to their considering this question. He said, "No, but you can write me a private letter". When Mr. Wilson took Office they were again told that they could not consider the question. If I may venture to say so, I think that was a pity. I cannot understand why either Prime Minister did not feel, "This Committee is obviously going to do a great deal of work in this field. If they would like to be able to consider this question and tell me what they think about it, why should they not?"
Some of this correspondence has now been published and we know that the Chairman, Sir David Renton, wrote:The present allocation of Ministerial responsibilities in this field, as we understand the matter, is that you as Prime Minister and Minister for the Civil Service are responsible for the administration of the Office of the Parliamentary Counsel.…Most members of our Committee feel strongly that there should also be a Cabinet Minister responsible for the general structure and language of legislation, as distinct from the drafting of particular Bills.… The Lord Chancellor is the senior legal member of the Government and is Chairman of the Statute Law Committee. So far as England and Wales are concerned, we think he should be the Minister responsible".The answer they got on the first point was simply:My conclusion is that no change in the existing Ministerial arrangements is called for".992 It is a practical point. It is very strange—the noble Lord, Lord Tranmire, and the Select Committee were surprised to find that this is so—that although we have had courses of training for Commonwealth draftsmen we have never had any such course for our own draftsmen. We have always had this chronic shortage.
The training, so far as it exists, is what used to happen in the case of justices of the peace. There was no compulsory training and each new justice of the peace was allowed to pick up the job from the old one. Everybody agrees now that this was not right, and compulsory courses of training for justices of the peace are not only welcomed by them but also are advantageous. So far as Parliamentary Counsel are concerned, the system is the old one that an older and a junior Parliamentary counsel are usually at work on each Bill, the young one picking up the job from the older.
So far as recruitment is concerned, I am not up to date but when I took Office I think that the only recruitment method was to put up a notice in the Halls of the Inns of Court, which was quite useless. I suggested to the then Chief Parliamentary Draftsman that there was no real reason why solicitors should not be capable of becoming Parliamentary counsel. That suggestion was accepted and notices then went up in the Law Society as well. Even women were accepted. But I understand that the Inland Revenue send our inspectors to the universities as soon as the examination results are known. They nobble all the Firsts and explain to them the delights of life in the Inland Revenue. This shows a determination to get results. Is there any large business in this country whose work would be completely held up by the lack of, say, 12 more technicians of a particular kind which would not go out and get them?
The difficulty has always been the question of responsibility. I remember when the noble and learned Lord, Lord Reid, said on the Second Reading of one Bill that he thought it contained one of the worst drafted clauses he had seen for a long time. Subsequently he and the noble and learned Lord, Lord Wilberforce. were kind enough to come to my room with the draftsman when the noble and learned Lord, Lord Reid, pro- 993 duced a clause which was half as long and twice as clear, but the draftsman said that on the whole he preferred his clause. Nobody can tell him, "What I say goes" except the Prime Minister; the Prime Minister is the only person who has any responsibility for the draftsmen. If the law Ministers—a phrase I was unused to until it was clarified by a Parliamentary Answer, and it means the law officers of England, Wales and Scotland—and the Lord Chancellor in particular were to be responsible for the Parliamentary drafting of Bills, I should be very much happier. The trouble has always been that nobody else can tell Parliamentary draftsmen what to do except the Prime Minister. In a sense they have always been irresponsible because the Prime Minister is not usually an expert on drafting.
Therefore, I am not surprised that in the other Western democracies it is always the Minister of Law, the Minister of Justice or the Attorney General who is responsible. Those who are mainly concerned with the results of legislation, apart from the people, are the judges who have to construe Acts of Parliament, and the Lord Chancellor is the person who is more in touch with the judges than any other Minister. Therefore the feeling is, I gather from the original Select Committee, that the terms of reference should have been extended; similar feelings have been expressed by the Committee themselves. I hope that sooner or later another look may be given to this question of whether it is any use making any one Minister responsible for seeing that Acts of Parliament are properly drafted and another Minister responsible for the men who do the drafting.
I should think that as a matter of commonsense it should have been the same. I suspect that it is not really a case of "everybody being out of step except our Johnny", because, just as with every other Western democracy, it is always the Minister of Justice or the Law Minister who is responsible for Parliamentary draftsmen. I cannot help feeling that probably no Prime Minister likes to give up any powers which he holds, but it really would not hurt the Prime Minister, of whatever Party he comes from, to do this.
994 I remember discussing this matter with the Attorney General of Canada. He told me that he was getting short of Parliamentary draftsmen, because naturally they come under him, and I asked him what he would do. He said, "I have persuaded three of the universities to include Parliamentary drafting in the syllabus of their Law Schools and thus we shall get them interested young". I think one noble Lord has already referred to the fact that there is now in Canada a Professor who runs a 12-month course in Parliamentary drafting, and I imagine this is the kind of thing the Lord Chancellor would do if he were made responsible in this field, as I hope ultimately he may be.
For the rest of the Report, again I record all our thanks to this hard-working Committee and to Sir David Renton for examining a subject which had not been examined for 100 years, and I hope as many of the recommendations as possible will be carried out.
§ 5.42 p.m.
§ Lord MOLSON
My Lords, it is at the risk of tedious repetition that I begin, as every other speaker has done, by expressing our sincere gratitude to the noble and learned Lord, Lord Simon of Glaisdale, for initiating this debate today. I should also like to say how immensely valuable I thought his speech was, not only for the analysis of the Renton Report but for the background which he gave us of what had happened when he was Solicitor-General, with some general responsibility for the drafting of legislation.
Equally interesting, but to me more surprising, was the revelation that we had from the noble and learned Lord, Lord Gardiner, that when he was Lord Chancellor he was not able to exercise ultimate authority over the draftsmen. I am bound to say that is not quite in line with what the late Lord Jowitt said to me, although admittedly he was speaking of the occasions when as Attorney General he refused to accept responsibility in the House of Commons for justifying what he regarded as unnecessarily obscure draftsmanship.
I am sure that we all agree that the Renton Report—coming as it does after 100 years—is a great mark in the history of the machinery of our legislation. I 995 feel it is comprehensive and scholarly and in almost every respect very wise. The outcome, of course, will depend, as I am sure the noble and learned Lord on the Woolsack agrees, upon the extent to which their recommendations will be put into effect. The experience of many people who have sat on Government Committees is that there is a great danger that recommendations, even when unanimous, are not put into operation by the Government of the day.
If I proceed to deal with two small points and appear to be criticising the Renton Report, it is only because there is not much use in making a speech saying how admirable the whole of the Report is if one does not make constructive—or destructive—criticisms of what appears.
I ventured to make certain suggestions to the Committee and I was immensely gratified to receive a letter from the Chairman, saying:The first three pages of your Report"—he meant memorandum—met with our almost complete agreement, especially as we are looking for guidelines as to the style of drafting.What were the two suggestions with which the Committee was in almost complete agreement? The first was that much greater use should be made of full stops and, consequently, and in the second place, that there should be much shorter sentences.
I cannot make these points to your Lordships more briefly than I did in evidence to the Committee and therefore I trust you will acquit me of egotism if I read out what I said:My principal suggestion for simplifying drafting is that more full stops should be used. There seems to be a rule or convention in Parliamentary Counsel's office that a full stop should never be used until the end of a paragraph or subsection.I went on to say:It is usually considered to be a rough and ready rule of good writing that each sentence should contain only one idea. It would appear desirable that Parliamentary drafting should comply with this rule.The last sentence of paragraph 11.11 of the Report broadly accepts what I suggested. It says:We recognize…that there are cases where it is natural for a full stop to occur in 996 the middle of a numbered provision, and we do not think there should be any rule or convention precluding this.But before that, in the same paragraph, and this confirms exactly what I said about the rule or convention in regard to not having a full stop, they said:In current drafting practice a subsection…is usually punctuated as a single sentence; or, to put it in another way, every time a full stop is reached a new numbered provision is begun. We think this is generally sound: where a thought has come to an end—as is normally the case at the end of a sentence—it is better to emphasise the break in this way.My Lords, if a full stop marks the end of a sentence and if a full stop is normally used only at the end of a subsection and if a sentence should contain only a single idea, then the implication of that is that each subsection, because it is not punctuated by a full stop, contains only a single idea. It is the experience of every one of your Lordships that subsections run for 5, 10, 15, even 20 lines and they contain a great many different ideas.
I referred to what is inserted as being exceptions, reservations, qualifications, provisos or amplifications. I make no complaint about their being put in; it is necessary for them to be put in to convey the meaning of Parliament. What I would urge is that they should not be put into a single sentence, but divided up by full stops. My argument is accepted to the extent that it is said that there should be no convention against the use of more full stops, but at the same time it is only accepted that there should be no objection to it in suitable cases. Yet what I put forward as a major proposal is apparently not accepted, and it is thought that the present practice is generally sound. From the Chairman's letter, I had hoped for something more.
My Lords, I pass from the question of full stops to approaching exactly the same problem from another angle; that is, the number of subordinate clauses contained in a single subsection. Again, I receive some satisfaction, especially in the summary of the recommendations at page 150. Recommendation (16) says:There should be no general rule about drafting in short sentences, but there should he as few subordinate phrases as possible before the subject of a legislative sentence or between the subject and its verb".It is all these exceptions, reservations, qualifications, provisos or amplifications, 997 often inserted between the subject and the main verb, which make Parliamentary Bills so extraordinarily difficult to read. As I said, I had hoped that these would be accepted, and I certainly need not weary your Lordships with examples of what I mean. There is no single one of your Lordships, I am sure, who has not suffered in that way.
§ Lord DAVIES of LEEK
My Lords, could the noble Lord, Lord Molson, read out to us one of these very elastic monstrosities?
§ Lord MOLSON
No, my Lords. There is not a single Member of this House, and certainly not the noble Lord who is a solicitor, who has not laboured with Acts of Parliament, and who has not read a subsection going on for nearly half a page, with all kinds of qualifications and provisos. On this subject, the Committee quotes the evidence of the present First Parliamentary Counsel, who says, at paragraph 11.9:First Parliamentary Counsel tells us that the draftsmen in his office aim at keeping sentences short…".I am bound to say that in that particular respect the Parliamentary draftsmen are not particularly successful.
My Lords, on this further matter of shorter sentences, Sir John Fiennes, an earlier First Parliamentary Counsel, says:Shorter sentences are easier in themselves, and it would probably help overall to have them shorter, but of course you are then faced with having to find the relationship between that sentence and another sentence two sentences away, which, if you have it all in one sentence, is really done for you by the draftsman".That is not an example of the greatest lucidity of Parliamentary draftsmanship!
I am not sure that I understand it; but if I do understand it, I am not convinced that it is sound reasoning. As I understand it, what it really says is this: the main argument I put forward—and the Renton Report confirms this—is that a sentence should contain one thought only, then the problem of facing the relationship between one sentence and another two sentences away cannot be solved by having it all in one sentence. Logically, I think it means that the draftsman in fact has "passed the buck" to the construer, who must break down one long 998 and involved sentence into its component parts, which I say the draftsman himself should have done.
For my own part, in all fairness, I admit that punctuation does not solve the problem of interpreting a complex Statute; nor has the draftsman solved the problem by incorporating all these different ideas in one single, unpunctuated sentence. Therefore, I am a little disappointed that two quite simple proposals that I made, which met with the almost complete agreement of the Committee at the outset, have not been more wholeheartedly accepted. This arcane craft of Parliamentary draftsmanship—and I call it the "arcane craft"; I was misquoted as calling it the arcane art"—which has been criticised by so many judges, as is mentioned in Appendix B, and excused in this way by its practitioners, appears to have been accepted by the Renton Committee as generally sound. I hope that even now, further thought will be given to the possibility of having shorter sentences, and having a full stop after each separate idea.
My Lords, as things are, anyone who tries to construe a subsection will often find that the principal sentence is quite short and quite simple. It will take out all the parentheses. One will find a subject at the beginning, and sometimes much later a perfectly simple main verb which sets out the intention; and that, I believe, by a quite simple change in the grammatical draftsmanship and punctuation, could make it very much easier for everyone to read.
One final point: In a public speech, I should like to reiterate what I said in my evidence to the Renton Committee, that much of the blame for obscurity does not rest with the draftsmen themselves, but with Ministers who wish to avoid too public a discussion of difficult matters. I have very little doubt about the example that the noble and learned Lord, Lord Simon of Glaisdale, gave about the Race Relations Act, and the fact that it was never disclosed in another place that it was not intended that clubs should be affected by that legislation. I have no doubt at all that that was deliberate on the part of somebody or other, who realised all the intense feeling that would arouse, and the sense of frustration it would give to those who were asking for something more.
999 The art of drafting in order to restrict debate in another place is merely another application of what we who served elsewhere are so familiar with, the drafting of a financial Resolution in such tight terms that most of the Amendments that Back-Benchers would like to move are in fact out of order. Therefore, I would join with all those who have spoken, and say that if I appear to have criticised the Parliamentary Draftsmen's Office, I recognise that they are devoted men of immense ability who are the victims of the circumstances in which they work. My noble friend Lord Tranmire dealt with a matter which was outside the term of reference of the Renton Committee when he spoke of the immense complexity of modern legislation because of the passion of legislators for trying to ensure that absolute justice should be done in cases that vary so much that it is really impossible to do it. That is another of the difficulties with which the Parliamentary draftsmen have been faced. So I conclude by saying that in the Renton Report we have a remarkable and most valuable document. I believe it will be of great help to the Parliamentary Counsels' Office, and I hope that the Government will do what is necessary to give effect to its recommendations.
§ 6.2 p.m.
§ Lord HALE
My Lords, I listened with respectful and affectionate regard to the opening speech of the noble and learned Lord, Lord Simon of Glaisdale, and no one can speak with more qualifications for his task than he, as a Member of Parliament, as one whose evidence before the Renton Committee is constantly referred to with approval, as a personage who, both in Parliament and the courts, is held in high affection; who held high judicial office with distinction even during a period of serious illness, and who now returns here to display a devotion to public affairs and activity as a judge which are beyond the powers of many. Indeed, while he was speaking his speech was so evocative, it called forth so many memories, that I even began to feel in my own memory some limited mental response and resolved to tear up my mental notes and substitute some of the reflections that his speech had called to mind.
1000 We have, of course, to speak with the greatest possible respect of another place, and I propose to refer to them in those terms of studied care and reticence with which they have recently been speaking about us. Because the guilt is there; no one is more guilty than me. I spent a lot of time in what was called "obstruction". I think in one Session I made about 100 speeches, mostly at four o'clock in the morning, almost invariably on subjects that I knew nothing about. I cannot refer to the provocation which made us embark upon that enterprise because of the proximity of a very popular and respected Member of this House whose early utterances contributed to it, and who is now sitting next to the noble and learned Lord who initiated this debate. I am not, of course, referring to the noble and learned Lord on his left, whom I heard with very great respect and attention.
My Lords, things have gone awry. I remember in my very early days in Parliament sitting at the feet of a considerable gamalian, James Chuter Ede, who thought about these things deeply, who loved the Commons, who was a genuine House of Commons man, a man of the highest reputation and character. He said, "You know, we are going wrong, already. There always was a tradition that if an Act was passed it should be respected. We have now got to the stage when one Government passes a measure and immediately the Opposition says that they will repeal it at the first chance they get." We have got to evolve a system, which really did exist historically, when, if the Liberals gave old-age pensions, the only alteration was perhaps to put them up, as indeed they needed. People did not endeavour to repeal, or substantially alter or modify for many years, the Parliamentary reform of this House. That is point number one.
The second point is that we are often guided by ridiculous brevities. "The duty of the Opposition is to oppose", we are told. It is not the duty of the Opposition to oppose, unless you insert the adjective "constructively" or "sensibly" or "reasonably". The noble Lord, Lord Simon, referred to the Report stage in the House. I do not think I share his views of the difficulty in carrying out his wishes, which I do share. So 1001 far as I remember, Mr. Speaker is indeed the arbiter of the Report stage; I think he has the absolute right of selection of Amendments. He has to have regard to the priorities of the Government, indeed the almost implicit claims of the Government for Amendments which arise out of promises made in Committee. The Back Bencher used to get very little chance of proposing Amendments at all on the Report stage. There would not be very much difficulty in making the Report stage, by agreement, a constructive stage in which Party politics would be abandoned, having played such part as they might have done on Second Reading and Committee.
§ Baroness ELLES
My Lords, would the noble Lord allow me to intervene for one moment? Would he admit that in this House it is the case that the Opposition do try to make constructive Amendments to a Bill and we do not consider it our sole duty to oppose? Perhaps the noble Lord would accept that there is a difference between the duty and role of an Opposition in another place as opposed to this House.
§ Lord HALE
Yes, my Lords. I do not know why the noble Baroness uses the word "admit", as though to extract from me something that I am unwilling to say. I entirely agree. It is one of the merits of this place. Indeed, it is one of the great merits of this place, when matters are not exacerbated by unusual events.
I was about to say that in the circumstances the introduction of the Land Bill was really putting upon Parliament a burden which it could not bear. What is wrong with this place, of course, is that Back-Benchers have really no effective part to play. They are expected to shut up. The noble Lord, Lord Clifford of Chudleigh, asked that I should sit down before my creaking limbs had even enabled me to assume an upright posture. The assurance I received, I think from the Leader of the House, the noble Earl, Lord Jellicoe, when I came here was that one Peer was equal to another Peer, which sounded promising, now takes precisely the perspective of the speech of the Governor of Dartmoor to his men serving 14 years and saying: "One thing we have in common; we are all members of the same establishment".
1002 I speak at this moment with great trepidation. While the noble and learned Lord, Lord Simon, was speaking, I was recalling, perhaps vaguely and somewhat inaccurately, a Sitting once on a mental health Bill Committee, when the whole atmosphere changed. I asked to be on that committee because the medical officer of Oldham was conducting some extremely important experiments which had attracted international attention. I can say on my recollection that from the start of that committee—Derek Walker-Smith was the Minister, and I pay tribute to him—the whole object of the committee was the constructive production of a workable Bill which would provide a liberal-minded measure in relation to the very serious complexities of mental health. I think that in normal circumstances the other place can work together, and I think we ought to try this.
It has got to be done, for despite this wonderful Report it seems likely that it is almost too late now. It touches only lightly on the problem of Common Market legislation, with the introduction of a supreme appelate court over the House of Lords, considering law which does not depend on stare decisis at all, which really emanates from an almost anonymous commission which is issuing laws which at the moment certainly are not the subject of any Parliamentary control, and are issued by the Commission. I speak as one committed and in full sup port of all this. I had no hesitation about the decision.
I recall there was a procedure of assembly with judges for deliberations of first importance. This procedure could be used—I see it is being used to the extent of seven judges at the moment—to give a full interpretation of the whole of a contested clause. It is difficult to defend a system of leaving a second point undecided because the first prevails. Of course, one understands the reasons.
The other problem is that there has to be some reform of the Judiciary, and it cannot possibly come from Parliament because it is the essential factor of our Constitution that the complete independence of the Judiciary should be guaranteed and implemented. I should have thought that nothing is more clear than that that should be done. Of course, there 1003 have been and will be reforms by Parliament in the system which do not raise the question directly of independence. I feel that those sections of the Report which refer to the question of the Judiciary and widening their powers of interpretation—to say that they can have regard to the origin, to the intention of this clause, supplemented, as the noble and learned Lord, Lord Simon, said, by such notes and other information which they are requested to rely upon if necessary—opens up some possibilities that need to be opened up, and indeed there are recent signs that they are.
The clause which appears in Appendix B, the clause which was first designed severely to limit evasion of income tax and which has defied judicial interpretation for so long, was in the very last case—I must not refer to names wrongly—the subject of a very clear statement, that as the object of this clause is to prevent the unnecessary and improper evasion of taxation, we can at least interpret it in a wider connotation, having accepted and understood its purpose. I frankly wonder sometimes why one reads time after time that your Lordships did not have to decide the second point because the first point controlled the case, and it therefore was not necessary to give a ruling. There has to be a full argument on the whole clause and the points on the whole clause. Counsel in one case do not know the points which may arise in another and so on. It is not easy. It is much easier to say these things than to do them.
The noble Lord, Lord Molson, referred in exemplary terms to the use of English. We have in fact still, I think, got basic English as one of the assets of the State which should be shown on a balance sheet. There remains one difficult fact. It is a very odd and almost inexplicable thing that many of our troubles arose from clauses which were expressed with apparently exceptional clarity. In the Workmen's Compensation Act 1906, the words, "an accident arising out of and in the course of his employment" were the subject of more judicial interpretation than any other words. The words in the Road Traffic Act about the administration of a breath test have been the subject of judicial interpretation in an astonishing variety of factual circumstances, and 1004 judges have said, and Parliament should take notice, that really this is a matter for new legislation. The sooner the Judiciary say they do not understand this clause, and they feel that in the public interest it should be revised, the better.
The other problem about Lord Molson's proposition is that there is not all virtue in a monosyllable. It was Serjeant Arabin who said, "With clarity that can be found from reading", and, Counsel said that the case of AB was virtually this case, but it seems to me that if there were a case that showed more clearly than this case that that case was not this, that case was this case." The monosyllables do not greatly help. Another legislative example concerns the Sale of Goods Act 1893, which was an absolutely standard clause. Section 14(1) was so admirably framed that every slightly dishonest witness knew exactly what points he had to put in his conversation with the trader in order to secure a verdict. The example is of the young lady of Cork who called to buy supper for her mother one day in 1900. She had been taught the provisions of Section 14(1) of the Sale of Goods Act 1893 duringa course at the Ursuline Convent which she attended. This was a case where art undoubtedly improved on nature. She bought a dressed crab for sixpence and inquired whether it was in good and marketable condition, making it clear to the tradesman that she was relying on his skill and knowledge, and she declared that it was for her mother's supper. In due course her mother was taken ill and, by a curious coincidence, her brother was a well-known solicitor. Incidentally, he had already established that his office, which was in the main street of County Cork, came, because of a flowery backyard, within the provisions of the Agricultural Rates (Relief) Act and so got a concession on his premises.
The case was tried by, of all people, the Lord Chief Justice of Ireland, Lord O'Brien, better known as "Peter the Packer," first because of his lisp and secondly because of his singular ability to get a wholly Protestant jury for every Catholic. The case went to the Court of Appeal of Ireland and then to the House of Lords. I am happy to say that justice was done, but at the last minute (and I am grateful to Mr. Justice Megarry's book for this information) Lord 1005 Justice Holmes inquired, "What about caveat emptor, "and at that stage a shudder of horror went through the court as to whether the Statute had effectively removed part of that common law.
My Lords, the problems are not easy, but everyone will be better for this Report. I hope that our Parliamentary proceedings may be improved by its consideration and I am sure that the House is indebted to the noble and learned Lord, Lord Simon of Glaisdale, and to the members of the Committee for what they have done.
§ 6.23 p.m.
§ Lord DENNING
My Lords, I, too, join in expressing our sincere gratitude to the noble and learned Lord, Lord Simon of Glaisdale, and Sir David Renton and his Committee. Having read the Report and its recommendations, I ask your Lordships and everyone to endorse them, as I do. I spend the greater part of my working life interpreting Statutes and from time to time I am appalled by the obscurity of them and the cost which it entails to the litigants to have them argued before the judge, then before the Court of Appeal and then before the House of Lords. The judges often throw the whole blame on the draftsmen. It was one of my predecessors who, after struggling with an Act for pages and pages, said he wished that he could order the Parliamentary draftsmen to pay the costs of both sides.
It may be that the draftsmen are in part responsible, and also the Ministers who may wish to avoid a difficult subject, but the judges themselves must, I fear, bear the greater responsibility because of the methods of interpretation which the courts have applied for at least 100 years. They go by the strict, grammatical, literal meaning and they say, "If this circumstance is not covered by the letter, then the Act does not apply to it". It is because of that ancient rule of construction that the Parliamentary draftsmen have sought every device for certainty so that the judges cannot escape it; they seek to think of every circumstance ahead so as to cover it if they can and, in that search for certainty and to cover every conceivable circumstance, we get these long sentences with obscurities and difficulties of inter- 1006 pretation. Thus the judges have their responsibility.
Some years ago—I think it must be over 20 years ago—I suggested in the Court of Appeal that we might consider the intention of Parliament; that is, that we might seek ourselves to fill in the gaps, to do what Parliament would have done if it had thought about this circumstance. I am afraid that our dear friend the then Lord Chancellor, Viscount Simons, whom noble Lords will remember with affection, repudiated the idea that we should fill in the gaps. He said it was a naked and patent use of the legislative power, and that method of interpretation has been in existence for over 100 years and has been largely responsible for the Parliamentary draftsmen having to draft their Statutes in this way.
How glad I am, therefore, to find one sentence in this Report expressing a new principle; so much so that I think I shall invite notice to be put in front of every one of my Lords Justices, and, perhaps I may add, if I may dare do so in front of my noble and learned friends sitting here judicially, they should note this sentence:The courts should, in our view, approach legislation determined above all to give effect to the intention of Parliament.I remind them that "the spirit giveth life". As to the letter, the precedent for interpreting by the letter should be:Tarry a little; there is something else.This bond doth give thee hero no jot of blood.The words expressly are "a pound of flesh":Take then thy bond, take thou thy pound of flesh;But, in the cutting it, if thou dost shedOne drop of Christian blood, thy lands and goodsAre, by the laws of Venice, confiscate.I do not mind a literal interpretation in a case such as that when it would do justice, but it rarely does. If the judges strive in future to find the intention of Parliament, they will do a great deal to cure the bad habits of the past. So far as the draftsmen are concerned, there is another principle enshrined here. If we have only general principles enacted in simple words and short sentences, that, 1007 again will be a tremendous advance. On another page, the Report says:The adoption of a 'general principle' approach in the drafting of our Statutes would lead to greater simplicity and clarity.Often, when I have been faced with one of these 10-line sentences—with goodness knows how many parentheses!—and have not been able to imagine what it meant, I have asked Counsel for an illustration of what they are driving at. I cannot understand the sentence at all until it is elucidated for me by Counsel, who may be attached Counsel or somebody who is familiar with the legislation, and who gives me an illustration of what they are driving at. I would suggest—rather as Sir James Fitzjames Stephen did in the Indian Penal Criminal Codes, which were a very fine piece of draftsmanship—putting in a little illustration of the sort of case which is being aimed at by the Statute. It could be inserted as an appendix. I do not say that it should necessarily be included under the heading of purposes or guidelines, as those might give rise to as much debate as the section itself. It need not necessarily be put in the Act itself but, as the Law Commission does, illustrations could be issued to help demonstrate the principles, and that would help the courts in their interpretation.
However, we must remember that there is a danger about general principles. They mean that the courts will have to fill in the details and that, for the time being, there will be uncertainty as to what the Statute means. However, the report realises that. The details could usefully be put in a Schedule as they are, but, with those two principles—a better method of interpretation and Statutes drafted in simple language with general principles—we should have done a great deal to solve our troubles.
I have one further point to raise. It is our entry into the Common Market. In our courts we have had to consider this Treaty and its interpretation. It is framed altogether differently from our Statutes. It is framed in the Continental manner, rather as I have indicated with general principles and wide statements. It is much more intelligible than our Statutes but much more uncertain. There is a great deal left to be filled in by the courts and, having seen the Treaty and 1008 some of the directives, I am wondering whether too much has not been left to them. However, there it is. We may have to—it may be a good thing as we are now in the Common Market—adopt common methods of draftsmanship and interpretation which will be applicable throughout. At all events, this Report and its recommendations point the right way which I hope we can all follow.
§ 6.35 p.m.
§ Lord STOW HILL
My Lords, I begin by joining all your Lordships in an expression of deep gratitude to the Committee and its chairman, Sir David Renton, for a most valuable Report. I add to that the name of the noble and learned Lord, Lord Simon of Glaisdale, for introducing that Report to us in so memorable a speech as that to which we listened this afternoon. So many admirable speeches have been made that I hesitate to occupy your Lordships' time and, if I do so for what I hope will be for a short period, it is to make rather general observations, the particular proposals having been so extensively covered in the learned speeches to which we have listened.
I start by referring to what the noble and learned Lord, Lord Simon of Glaisdale, said. This was followed up by my noble and learned friend who sits on the Woolsack. The noble and learned Lord was anxious that the Legislation Committee, presided over by the Lord Chancellor and containing as its members the Law Officers, should perform the function of looking to see whether there was unnecessary obscurity in legislation. My noble and learned friend the Lord Chancellor replied that that is exactly what happens at the moment. I believe I can take him even further back because I am rather old in years and I can go back to 1945 and tell him that the then Lord Chancellor presided over the Legislation Committee of the day and that the not very effective Solicitor General of the time, who was, however, very regular in his attendances, did whatever he could to try to remove obscurity. The noble Lord, Lord Molson, reported what Lord Jowitt had said to him about declining to introduce legislation when he was Attorney General if he thought it obscure. I hope that I am not betraying confidences if I say with complete assurance that that was exactly his attitude 1009 when he presided over the Legislation Committee. We were all extremely grateful to him.
May I make a general observation which arises in regard to what the noble and learned Lord, Lord Denning, has said in regard to European legislation? The Treaty of Rome is extremely generally worded. The noble and learned Lord said that he had looked at Directives and that they also were rather generally worded. I have spent considerable time looking at them and at regulations and I cannot help thinking that they are moving very much in our direction. If one examines them, they are very much more detailed, at any rate than one might at first expect them to be. The first general comment which I should like to make is that I hope we shall not endeavour to formulate our legislation in general statements of principle.
I begin by agreeing with absolutely everybody that we want certainty, clarity and simplicity. If our legislation broadly follows the Continental system of broad statement with the detail being left to the learned judges to fill in, what will be the result? Shall we really achieve certainty? I think not and, in saying so, I do not intend the least disrespect to the wonderful services which our independent judiciary renders to us. But what happens? The matter goes before a learned judge in the first instance. That is one opinion, which will be expressed in his language. It goes to the Court of Appeal, where there are three Lords Justice each expressing an opinion in his own language. Years later, it may go to the House of Lords. There will then be five speeches, each expressed in the language of a different noble and learned Lord. Your Lordships' House, sitting in a judicial capacity, a few years ago decided that it would no longer regard itself as bound by its own previous expressions of opinion; it can vary or reject them. So, on the score of certainty, I feel that one will not achieve certainty if one adopts what is, in effect, the Continental method.
I must say a word on behalf of Parliamentary Counsel. They do the most admirable work. The Report contains some examples of obscure drafting. My noble and learned friend the Lord Chancellor told us how many thousands of pages of legislation there now are. 1010 If one could not find example after example of obscure drafting in those thousands of pages it would be an incredible miracle. Of course there are cases of obscurity. Bearing in mind the enormous range of relationships that Parliamentary Counsel and Parliament—the Legislature—have to deal with in the enactments which get on to the Statute Book, it seems to me not extraordinary that there should be some examples of obscure drafting. It would be extraordinary if it were not possible to find heaps more examples. On the contrary, I think that the legislation is extremely well done.
May I give examples. We had recently the Community Land Act. Noble Lords on both sides of this House strongly disagreed as to the provisions of that Act. Some noble Lords do not like them, others do. We also had the Employment Protection Act, and the same applies to that Act. In 1971 we had a major constitutional Act—the Industrial Relations Act. There was the strongest disagreement in the other place, and in this House, about the effect of the provisions of that Act, now repealed.
But I try to think back on the discussions, and I think I am right in saying that there was very little complaint about any obscurity in those Acts. We could all understand them. There we had examples of Parliamentary Counsel having covered in legislation three vast fields of human relations in terms of the Employment Protection Act, the Industrial Relations Act and the Community Land Act. But I think I am right in saying that so far as the question of obscurity was concerned, those Acts remained comparatively uncriticised, either in another place or in your Lordships' House. In my respectful submission that does not seem to connote an obscure, turgid, unintelligible system of Statutes. In my opinion it connotes precisely the opposite.
May I take another example. We are to have, I suppose next year, the wealth tax. I have never disguised my opinion that it is a thoroughly bad tax, and the last vestige of a case for it has gone, now that we have the trasfer of capital tax. However, apparently we are to have this wealth tax, if it is passed by Parliament, and we will have to live with it. The Government, I believe perfectly 1011 rightly, published some months ago a Green Paper setting out the broad lines of possible approach to the construction of that tax. Since then a Committee has been sitting under the chairmanship of Mr. Douglas Jay. I do not have the remotest idea as to what that committee is proposing to recommend, but I suppose that Mr. Jay and his colleagues have subjected the matter to a thorough examination. Already in the Press there are a number of arguments put forward, by letters and correspondence, complaining as to the possible effect of that tax. It is argued that it should not apply to the works of young artists. It is also argued that it should not apply generally to works of art. It should not apply, so it is argued, to what can be regarded as our national heritage. I suppose as the months draw nearer to that Act getting on the Statute Book the controversy about it will thicken and there will be argument after argument on the question as to what it should and should not have application.
No doubt the Chancellor will be ready to consider whether he can make exceptions, and whether the Act would operate oppressively, if it applied to all those suggested exceptions, and others that will, no doubt, be voiced. I am sure that he will consider whether or not he can make concessions. But what is bound to result is something of extreme complication. It will be utterly idle to expect that that Act can be framed in language which he that runs can read.
I have probably got the facts all wrong, but I recall something from the 1945 Parliament, and it was roughly like this. One of our Chancellors, listening to the Opposition in a debate on a Finance Bill, thought that the Opposition had a point on which he should make a concession. He asked me to look at this point with Parliamentary Counsel. Engaging in a transport of conceit—to which I hope I am not subject too often—I sat down and thought I would make a draft. I spent about four hours drafting about three lines. Next morning Parliamentary Counsel—I have an idea that it was Sir John Rowlatt and Mr. Peter Sée, both admirable public servants came to discuss it. They sat down very peacefully. I did not break to them the glad news that they would not have to work because 1012 somebody of my remarkable brilliance had already done it for them. They sat down very politely and said that the Chancellor's concession was quite easy to put into language. There were six situations to be covered. I am afraid that my draft did not cover any of those six—I had not thought of them—and so it was discreetly torn to pieces by me under the table, and it found a proper resting place in the wastepaper basket. That is typical of the type of task they have to deal with. Therefore I hope that one will not too easily embark on criticism as to confusion in Parliamentary drafting.
I ought to pay a tribute to the Statute Law Society. My noble and learned friend Lord Gardiner referred to the fact that I have been connected with it, and have had the privilege of being able to work with it and with Mr. Benyon. I should like to pay a tribute to that society's devotion and its learning. It was very anxious that the textual system of amendment should be preferred to the referential system, as the Report recommends, "so far as possible"—that is a big qualification. I slightly disagreed with Mr. Benyon when we discussed it among ourselves. The qualification, I think, is this. It is true that the ultimate user is a person whose interest must be taken very closely into account in matters of this kind. But it is also true that Parliament must not be obstructed in doing what is necessary in the public interest.
The noble Lord, Lord Tranmire, read a passage from the Report—paragraph 1.10—saying that one trouble was that Governments passed too many Acts and that Members of Parliament asked too many questions. Nobody has had such a long and distinguished career as a Member of the other place and as an admirable constituency Member as has the noble Lord, Lord Tranmire. I can imagine that had he wanted to ask a question to protect his constituents he would not have hesitated for a moment. He would quite rightly have refused to hesitate. We all admired him, and still admire him, for the admirable work he did as a very experienced Member of the other place.
With regard to a textual system, let us consider the following situation. Members of another place, with all their 1013 responsibilities upon them, and working perhaps on 40 or 50 letters to their constituents, may hear the Division Bell ring. It is in the public interest that they should then know what they are voting about, so far as is possible. A textual amendment simply says that in such-and-such a clause of an Act passed 20 years ago the words "upside down" should read "inside out", or something of that sort. It does not tell them much. It is accepted by those who propose the textual system of amendment in preference to the referential system, that an explanatory memorandum of some kind is necessary. This makes it awfully difficult for Back-Bench Amendments to be dealt with if an explanatory memorandum has to be provided, and it makes it very difficult for manuscript Amendments to be dealt with if an explanatory memorandum has to be provided. Therefore there are limits—and very severe limts—as to what can be done by way of textual amendment.
A Member of Parliament, if he has a referential Amendment, has a general idea as to what he is voting about. While the interests of the ultimate user are of transcendent importance, so are the interests of the legislature. Busy Members of another place, and indeed busy noble Lords in this House, must know what they are voting on. It must be made not too difficult for them to find out as much as they can about the controversy in question, if they happen to be engaged on other matters when they hear the Division Bell ring. Subject to that I entirely agree with what is proposed.
I want to make this point. Legislation is for such different people. Some of it affects all of us. I was brought up on the Larceny Act 1916 (now superseded) and that contains what I always thought was a clear and comprehensive definition of theft:fraudulently and without a claim of right taking and carrying away with the intention permanently to deprive the owner".I do not suppose that one in a thousand people whom one meets in the street would have had the faintest idea as to what is, or rather was, the definition of theft in the Larceny Act. They never look at the Act. My noble friend Lord Hale mentioned the Sale of Goods Act 1894—the same is true of this Act, although it affects everybody. But legislation of a more complicated character— 1014 for example, the Finance Acts—nearly always is for people who are professional experts, and they have time to sit and work it out with their expert advice. That is, after all, partly what they are for. They are lawyers, they are accountants, they are professional people of that sort; and it really is acceptable, I should have thought, that in their case a certain amount of complication which would require unravelling by them is permissible when in so many cases that complication is difficult, and indeed impossible, to avoid by the draftsman.
My Lords, I have spoken, I am afraid, for a quarter of an hour, which is longer than I intended, but I have done so simply to try to redress the balance a little and to tip it slightly in favour of licence to Parliamentary Counsel, and to say, in recognition of them, what wonderful service they render to us. How agonising it must be for them to sit in the box, either in the other place or in your Lordships' House, and listen to language which they have used and which is pellucidly plain to them, being expounded by, say, a Solicitor General—and some holders of that position (I speak of myself) are not always as effective as others (I speak of two others in this House)—who is unable to convince a rather doubtful other place or doubtful House of Lords that really the thing works perfectly well, when they, who have done the drafting and have sat up most of the night doing it, know perfectly well what it is meant to do and what it means. So, my Lords, I strike, I hope, a modest blow for them, and haveing done so I sit down.
§ 6.51 p.m.
§ Lord BROOKE of CUMNOR
My Lords, the conscientiousness and the thoroughness of this Report are just what I would have expected from a Committee presided over by my right honourable friend Sir David Renton. This has been an admirable debate, at any rate up to this moment, and I greatly hope that the noble and learned Lord, Lord Simon of Glaisdale, as well as the noble Baroness and the noble Duke who have spoken, have been gratified by the quality and the extent of the interest taken. I missed only one speech which, alas!, could not have been delivered, but had the Rules permitted us to be addressed this afternoon by the Clerk of Parliaments, who 1015 was a member of the Renton Committee, he might have made the best and most well-informed speech of all.
I am at this moment committing the indiscretion of getting in among the lawyers, as your Lordships will see if you look down the list of speakers. That is generally considered by the public to be a rash thing to do. My only excuse for doing it is because two or three years ago I had the honour to be Chairman of a Joint Committee of both Houses on the subject of delegated legislation, and I think that the somewhat restricted terms of reference of the Renton Committee Report prevented it from bringing home to the reader how these two aspects of the subject intermesh. The words, "the preparation of legislation" should obviously cover both primary and secondary legislation, but the terms of reference did not extend to the latter, although I notice that in one or two places the Renton Committee made specific reference to recommendations of the Joint Committee on Delegated Legislation.
If I am to develop this theme, I shall have to go into some technical matters, and in all seriousness I would recommend any noble Lord who feels in need of refreshment to go and partake of it at this moment, because I shall have to be somewhat technical for the next few minutes and, so far as I can foresee, excruciatingly dull; but it has to be done. Two places where I note that the Renton Committee referred to the recommendations of the Committee over which I presided are on pages 69 and 96 of their Report. We gave—I think the relevance of this to the preparation of legislation will become clear as I speak—some study to the different varieties of control that are provided in Acts of Parliament, to enable Parliament to supervise Statutory Instruments which those Acts empower Ministers to make.
I think your Lordships will all recognise that there must be three categories of such control. We know that from experience. There are some Instruments which are subject to approval by both Houses of Parliament and which either do not cone into force or do not remain in force unless that approval is given within a specified period. Those are what we nowadays call the Affirmative Instruments. Then there are the 1016 Negative Instruments, Instruments which can be prayed against in either House. These are the Instruments which will be killed if disapproved by either House within a given time. Then there is another substantial category of Instrument—a category of which Parliament itself sees relatively little—and that is those Instruments which, by the Act, are made subject to neither disapproval nor approval. Indeed, they are Instruments which may not come before Parliament at all except that now the Joint Committee on Statutory Instruments has the duty to examine all of these for their form, though not for their merit. It would need a special Motion to enable Parliament to debate the merits of such Instruments.
We discovered by analysis and search that there were at least seven different varieties of provision for Parliamentary supervision and scrutiny of the merits of Statutory Instruments, and it seemed to us that not more than four of these were necessary and that the other three could be eliminated. This is all, I would submit, part of the great task which has today been referred to by many of your Lordships; the task of getting rid of unnecessary complication from the work of Parliament and gaining, wherever we can, as much simplicity as possible. The Committee on Delegated Legislation came to the conclusion that there were really needed only two varieties concerned with Affirmative Instruments, one with Negative Instruments and one with those Instruments which were not to be subject to Parliamentary control at all. That is a reduction from seven to four. This recommendation was not, so far as I can remember, objected to by any of the witnesses who came before us, and certainly not by the Leaders of both Houses, who also gave evidence. There seemed to be general agreement that, in future, the draftsmen should be instructed to use one of the four varieties of provision for supervision, which we specified, and to drop the other three. When I say "drop the other three", I do not mean that we thought Parliament should embark on the tremendous task of revising past legislation so as to bring all that into line, but we thought that the unnecessary varieties might be omitted in future.
What the noble and learned, Lord, Lord Gardiner, said about the widening 1017 of the powers of the Joint Committee on Consolidation Bills reminds me that we ventured to throw up a recommendation that the powers of the Joint Committee should be widened somewhat further in order that it might be enabled, in the process of consolidating past Acts of Parliament, to pursue this policy of elminating the unnecessary varieties of control. After all, the Reports of the Joint Committee are not final documents. Normally, each Bill is recommitted to a Committee of the Whole House, and if the Whole House does not like this change it can say so. But I greatly hope that one day that idea will be taken up and that the Joint Committee on Consolidation Bills will have its powers enlarged in that way.
My Lords, I come now to another of these technicalities which crops up again in the Report of the Renton Committee. It is a bigger task for the draftsmen to draft provisions imposing what we call the affirmative method of control of Statutory Instruments than to draft the Negative Resolution procedure. This happens because in the Statutory Instruments Act 1946 formulae are included which cover the procedures on Instruments which are subject to prayers, Negative Resolution procedure Instruments. If a draftsman is instructed to make provision in the Bill that certain Instruments which can be made under the Bill shall be subject to the Negative Resolution procedure in Parliament, then all that he has to do is to use a few words which will attract either Section 5 or Section 6 of the 1946 Act, and there it is. That is completely standardised. If, on the other hand, he is instructed to provide for supervision by Affirmative Resolution of both Houses, that cannot be done in the same simple way. There is no standard provision of that nature in the 1946 Act and the draftsman has to set it out at length; it can come to considerable length. Of course there arc no vast differences between the provision in one Act and another in this respect; nevertheless, in non-essential parts of the drafting, differences occur and they may suggest that there is some difference in the control under these Acts. There is no difference. It is simply that there is freedom to use different words.
Perhaps at this point I had better try to reduce the technicalities by reading what the Joint Committee on Delegated 1018 Legislation said about this matter. It is set out, in words that I hope everybody will understand more easily than mine, in paragraph 76 of the Second Report from the Joint Committee on Delegated Legislation in the Session 1972–73:Whereas the negative procedure is imposed by the use of a standard formula which attracts Sections 5 or 6 of the Statutory Instrument Act 1946, the affirmative procedure is in every case written out at considerable length in terms which in nonessentials tend to differ from Act to Act. There would be advantage in adopting standard formulae for the imposition of the affirmative procedure, as is done already for the negative procedure. This would require legislation.I said, "in non-essential terms". May I give your Lordships an example of that? We made an analysis of the use in recent years of that variety of the Affirmative Resolution procedure Instrument which provides that the Instrument shall be laid after being made but shall not remain in force unless within a certain number of days, a specified period, both Houses have resolved to approve it. In the period we looked at, there were 16 cases where this variety was used. In 14 of them, the period was specified in the Act as 28 days—28 Sitting days according to the usual calculations. In the other two, the specified period was 40 days. These were cases of schemes for calf subsidy and schemes for farm capital grants. I think I can best express our view if I read what the Committee succinctly said about the difference in Paragraph 24 of their Report:The Departments concerned can offer no compelling reason for this difference. Neither can your Committee perceive any.It is this sort of unnecessary variation that I feel sure it would help Parliament to be rid of. In this case, I am glad to say that the Renton Committee referred to the matter. No doubt conscious that they might be straying beyond their terms of reference, they did no more than to draw the attention of the Government to the recommendation which the Joint Committee on Delegated Legislation had made.
Another matter to which the Joint Committee on Delegated Legislation addressed themselves was to see whether they could draw up any reliable criteria for selecting which was the most appropriate form of Parliamentary control for a particular Instrument. When I say, "appropriate 1019 form", I mean, for example, whether the Instrument envisaged in a particular clause of a Bill should be subject to the Negative or the Affirmative Resolution procedure or to no Parliamentary procedure at all. We came to the conclusion that the normal control should be the Negative Resolution procedure, unless there was clear reason to the contrary. Any Instrument which a Minister was empowered by Act to make should be liable to be the subject of a prayer in either House. If the prayer against it was carried, it would either not come into operation or it would cease to be in force.
If, on the other hand, there were certain important features of the Instrument—and we attempted to list some of these—it should be subject to the affirmative control. If, on the other hand, it appeared to be a matter of little, almost nominal consequence, and there was no political controversy to it, there should be no need for any Parliamentary control other than the scrutiny of the form of the Instrument by the Joint Committee on Statutory Instruments.
Then we went a little further and recommended—I attach considerable importance to this myself—that there should be a section on delegated legislation in the Explanatory Memorandum which precedes every Bill. Your Lordships will know that already the Explanatory Memorandum is required to indicate what will be the financial consequences of the Bill and also what will be the effects of the Bill on manpower. Our recommendation was that there should be a third piece of information included in the Explanatory Memorandum; it should list all the delegated powers which the Bill proposed to grant to Ministers and should indicate, also, the category—that is, Affirmative Resolution procedure, Negative Resolution procedure or no control—into which the Bill proposed that the Instrument-making power should fall. Here, again, the Renton Committee picked this up and said that it would be, in their view, a convenience to Members of both Houses if this were done and they could see no objection to it. My Lords, those are the technicalities. My concern is that these questions of delegated legislation should be looked at by the Government at the same time as they 1020 look at the Renton Report, so that we do not do half a job but a whole job. I hope that that will be pressed on Governments, whatever their colour, by both Houses of Parliament.
Finally, my Lords, how is it that Ministers are expected to exert their influence towards greater clarity and simplicity in legislation? I can only tell your Lordships of my own habit. It was my practice, if presenting a Bill to Parliament, to read through the whole Bill myself. I believe that that was not at all a misuse of a Minister's time. Granted, I did not read the repeals Schedule (I left that to the lawyers) and other similar sections; but, in general, any passage that I did not understand reasonably easily I would mark. I would ask Parliamentary Counsel to come to see me and then go through it with them. On some occasions they persuaded me that I was being stupid. On others I was successful in persuading them that this was needlessly complicated and that they should have another shot at it.
I am sure that in many cases—I hope the noble and learned Lord, Lord Gardiner, will confirm this—obscure drafting results largely from the sheer pressure of time under which the draftsmen work. When draftsmen can talk to a Minister in his room and seek to explain to him what seems to him to be a difficult passage for the common man's understanding, the draftsmen having a little more time will find means of getting in clearer. My feeling—not that my mind is a particularly good criterion for these things—was that if I, who am supposed to have some knowledge of the background of the subject, could not understand it, what chance was there for the ordinary member of the public who lacked that background of knowledge?
I want to pay the highest tribute to Parliamentary draftsmen for all they do. I have had so many examples of their kindness, readiness to find time and extraordinarily accurate work. It is clarity and simplicity which we have to aim for, as indeed the Renton Committee said. I believe both Houses of Parliament need to keep up the momentum on these matters. That is one reason why I wanted to intervene in today's debate. These Reports which deal with matters which do not carry any votes with them can be set aside by Governments, as one 1021 well knows, unless there is sufficient Parliamentary pressure sustained to ensure that the Governments will take action.
§ 7.12 p.m.
§ Lord WIGODER
My Lords, your Lordships are discussing today a matter which is not merely one of academic importance to lawyers but of the gravest and most serious importance to the community as a whole. As your Lordships have heard from the noble and learned Lords, Lord Morris of Borth-y-Gest and Lord Denning, the time of the Appellate Committee of your Lordships' House and the Court of Appeal is largely occupied by cases involving the interpretation of Statutes. Indeed, in the criminal and civil courts up and down the country there must be hundreds of cases every week in which the wording of a Statute is in issue. It goes without saying that all those cases involve for the litigants expense, delay, frustration and maybe real hardship.
It also goes without saying that almost all of those cases have come to court because the drafting of the relevant Statute is open to query. I say "almost all of those cases" because in a small number of cases new and unanticipated circumstances have arisen which make it difficult to apply them to an existing Statute, and also a small number of cases arise where difficulty is experienced because Statutes have attempted to deal with topics that are simply not amenable to legislation. I have in mind particularly matters that relate to social attitudes, and to such Acts of Parliament as the Sex Discrimination Act, the Rehabilitation of Offenders Act and the Race Relations Act, of which one approves entirely in principle but which, by their very nature, it is difficult to be sufficiently precise about to produce satisfactory legislation.
The great majority of cases arise because the drafting is inadequate. That in turn arises because inadequate consideration has been given to the Bill, both by the Parliamentary draftsmen and by the Members of both Houses of Parliament upon the passage of the Bill through its various stages. May I stress at once that I am referring to inadequate consideration and not in any way to incompetence. It is hardly necessary for me to associate myself—but of course I do—with the tributes which have been paid 1022 to the skill, care and diligence of Parliamentary draftsmen, nor indeed, with respect, to the care that is obviously taken by so many of your Lordships and Members of the other place when the opportunity arises to consider the drafting of a Bill in one of its various stages.
The real problem is the inadequate consideration which arises out of the sheer volume of legislation which is being produced. This is a theme which runs through many parts of the admirable Report of the Renton Committee. Something over 2,000 pages of new Statute law are being produced every year. It is essential, if we are to consider the question of improving the wording of our Statutes in the future, that we should consider for a moment the reason for this vast increase in legislation, to see whether something can he done to reduce it. This involves embarking for a moment on political considerations which of course have been rightly and properly eschewed by noble Lords who have taken part in this debate.
Is not the real cause of our present troubles in this respect the pernicious doctrine of the mandate which has given rise to so much trouble in our Parliamentary democracy? There are many noble Lords here who have served on the Committees of political Parties that produce a Manifesto. The reality is (is it not?) that a rag-bag of miscellaneous resolutions from the Party conferences of the past few years is strung together; commitments are put in so that each sectional interest in that Party will remain satisfied and a Manifesto is thus produced. Having been produced, nobody reads it. I suggest fewer than 1 per cent. of the electorate ever trouble to read the document. When it is read nobody votes on it because I assume hardly anybody who votes in favour of a Party is in fact voting for all the items contained in the Manifesto.
We have an electoral system—and I do not want to turn this into a debate on electoral reform—under which a Government are elected with something under 40 per cent. of the votes of the electorate. They immediately regard themselves in those circumstances as not merely entitled but under an obligation to introduce the whole of the contents of their Manifesto at the earliest possible moment, irrespective of the circumstances in which the document came to be in 1023 existence, irrespective of the fact that conditions might well have changed since the document was produced and as a result many of the measures are totally irrelevant. I say this not in criticism of any one political Party or any one Government. I believe it is a criticism that applies to us all. The results of this doctrine are that legislation is produced in such volume that, first of all, it cannot be properly considered either by the draftsmen or the House of Parliament and, secondly, pressure is put on professional advisers, particularly accountants, who have to cope with an impossible problem presented by new legislation in each Finance Act. As a result of those pressures the processes of legislation do not run smoothly.
May I give three simple examples from recent history. Last Session the Industry Act was debated at length in your Lordships' House. On Committee stage, a number of Amendments were passed, some of them not in any partisan political spirit but intended to improve the operation of the Bill. These Amendments were never debated in the other place. Owing to the pressure of work there, the Amendments had to be taken under the guillotine. There was not one word of discussion or consideration given to them. The Children Act has already been referred to. Your Lordships will remember that right at the end of last Session we were presented with a typescript document which contained 300 Amendments. In effect, we were told they had to be passed within 24 hours, in the course of a debate of an hour or two, otherwise the whole Bill would be lost.
May I take a further example. Only last week there came a Bill that clearly had to be produced in haste in order to comply with our obligations under the European Economic Community, who wanted this matter made law by 1st January. This was a Bill to provide for drivers' ages in connection with road traffic. An intelligent 17-year-old lorry driver might perhaps be forgiven for thinking that if he acquired this Bill, which contains only four clauses, he would be able to find out whether it is possible for him to drive a medium-sized goods vehicle.
1024 He would find that Clause 1 begins in this way:Section 4 of the Road Traffic Act, 1972…is hereby repealed and Part III of that Act…shall, subject to Schedule 2 to this Act, have effect with the substitution for section 96…of the following…".If he surmounted that and got as far as Clause 2, he would find that began in this way:In Part VI of the Transport Act, 1968…in section 103(1), for the definition of the international rules', there shall be substituted…".Then follow some other words. He might have been as rash as I was and got down a copy of the 1968 Statutes and had a look at the Transport Act 1968. From start to finish it nowhere contains the words "the international rules", and in fact one has to go to an obscure subparagraph of a Schedule to the European Communities Act to find that in that Act the Transport Act of 1968 is amended—and it is that amendment which is referred to in the Bill being discussed last week.
To deal with this unsatisfactory situation the Renton Committee have made a number of useful proposals. I would venture, in a word, simply to support three of them. The first is that which has been mentioned already by the noble Duke and the noble and learned Lord, Lord Gardiner, during this debate, namely, that the pace of consolidation should be increased. If I may say so, this would involve finding numerous replicas of the noble and learned Lord, Lord Simon of Glaisdale, because I venture to doubt whether it is fully appreciated what a vast amount of work he does as Chairman of the Joint Committee on Consolidation Bills. But that is a move which, given adequate staff to support it, might help to make our Statute Book rather more coherent.
Secondly, the Renton Committee refers to the possibility of Bills in draft form being submitted to organisations which are familiar with their substance in order that their views may be obtained, not on the merits of the Bill but on the possible holes which could be found there. I have in mind the catastrophic Road Safety Act which brought in the breathalyzer legislation, on which many of my friends have been living contentedly now for many years. I suspect that if that Act, in draft, had been sent for approval to 1025 magistrates' courts practitioners, and perhaps to magistrates themselves, and if they had been invited to look at it simply to see what possible defects could be found, then at least some of the possible flaws might have been found at that stage rather than in your Lordships' House in the Appellate Committee.
Thirdly, there is the recommendation, which again I would venture to endorse, that there must be a proper timetable, a schedule, for the various stages of Bills as they go through both Houses of Parliament, to ensure that time is available for proper consideration of the wording and the drafting of Bills in their final stages.
Fourthly, I come back to the matter with which I began, that the really crucial factor which would enable us to consider legislation properly in future and which would enable the Parliamentary draftsmen to devote to it the care and attention they would wish, is somehow to reduce the volume of that legislation. The noble and learned Lord, Lord Simon of Glaisdale, said in opening this debate that of course Ministers want to leave their mark on the Statute Book. I would hope that is an attitude which can be overcome. I look forward with hope—though, I am bound to say, perhaps with no great confidence—to the day when the gracious Speech will contain in substance only one sentence: "The Government will bring in no new legislation this Session. They propose to get on with the job of running the country."
§ 7.25 p.m.
§ Baroness ELLES
My Lords, from these Benches we join with other noble Lords in warmly thanking the noble and learned Lord, Lord Simon of Glaisdale, for introducing the subject of the Renton Report for debate in your Lordships' House and for giving us the opportunity to discuss a subject of immediate and pressing concern not only to legislators but to all members of the legal profession and—those people who are sometimes forgotten—to the citizens of this country, who are increasingly becoming the victims of excessive legislation and State interference into what up to recent times have been considered the private areas of their lives.
We have had today the benefit of what might be called the collective and individual wisdom and experience of 1026 many members of the Judiciary of our country. I know that those of us who are not practising lawyers nor have had the benefit of being judges, will have profited from this wisdom and experience, as well as those experienced legislators who have served in both Houses of Parliament and, of course, speak with considerable knowledge. Coming as I do towards the end of the debate, I am grateful for all that has been said, and I know that noble Lords will excuse me if I do not refer to all the many valuable points that have been made but instead concentrate on one or two aspects which we on these Benches consider to be important.
Of course, we warmly welcome the valuable Report itself, presented by Sir David Renton and his Committee, and we warmly congratulate them on this most useful document. We consider that it should become a guide to all those connected with the preparation of legislation both in the United Kingdom and abroad. I should like to see copies of this Report in universities and centres of legal study, where they can be read with considerable benefit, so that the Report could ultimately benefit the legislation not only of this country but of any other country.
There are justified criticisms of existing legislation contained in Chapter VI of the Report concerning language and its complexities, and over-elaboration and its inherent difficulties to the user—and here I would add not only to the professional user, but also again to what might be termed either the beneficiary or the victim. The structure and arrangement of the amendments and their various alternatives have all been considered and noble Lords have spoken on these matters.
We from these Benches strongly support the recommendations contained in the Report. In Chapter VII there is, quite rightly, criticism of the enormous amount of legislation which is coming on to the Statute Book. It was said that ten laws used to suffice, but now we have over 3,500 wholly or in part in force, excluding an ever-increasing number of Statutory Instruments and bye-laws of local authorities, public corporations and so on. It must be recalled that the Committee was appointed in May 1973 and they completed their work 1027 by May 1975, so that they had ended their labours before the enormous programme of 1975 had got under way. There is no doubt that in this country we have been subjected to what might be termed a revolution by legislation "within the last year, with consequent ill-digested, complicated and, to many, undesirable Bills being passed. They can have very serious consequences on the citizen, yet adequate time has not Peen given to debate these issues.
Members of your Lordships'House—and I do not seek to make a political point here—will remember that we have been subjected on more than one occasion to the necessity of discussing Bills which have come up the same morning from another place, having had new Amendments added to them. This has made the task of legislators in this House totally unreasonable, and, if this House is to fulfil its proper constitutional duty and function as a revising and amending Chamber, we must have a reasonable interval after legislation comes from another place. To Recommendation 105, relating to the timing of Bills, perhaps a proviso could be added, after the experience of recent months, that reasonable time should be allowed between the Third Reading in one House and consideration of the Bill in the other House. This would be of benefit to both our Houses, if we are to do a proper job.
In Chapter VIII, relative to manpower, the Report underlines the difficulties of recruiting suitable lawyers to the Parliamentary Counsel's Office. It is quite clear from the work they do that the kind of recruit needed is one who has a very high standard of academic excellence as well as legal training, but that type of person is much more likely nowadays to be attracted to a career at the Bar or in a firm of solicitors than in the Civil Service. Therefore, not only must there be closer links between the legal Civil Service and the universities, but it may be—and I throw this out only as an idea, because I am not an expert in the affairs of the Civil Service—that the conditions of service, the promotional prospects and the narrow career structure within the Parliamentary Counsel's Office should be looked into, and possibly made more attractive for young people today. I suspect that the career structure within the 1028 Parliamentary Counsel's Office must be narrow, because of the nature of its work.
The noble and learned Lord, Lord Gardiner, very rightly, mentioned the question of training, which I also agree is absolutely essential if the proper kind of person is to be attracted to the Parliamentary Counsel's Office, and he has undoubtedly played a great role in encouraging the training of counsel for this work. Another point is that going to the Bar, from where many of these counsel are drawn, is a very expensive process. Without suggesting that there should be any further public expenditure, because I know that this is a subject on which none of us is now allowed to make any recommendations whatsoever, it might be suggested that really bright and intelligent students from university, who wish eventually to go into the Parliamentary Counsel's Office, should at least be given a loan or encouraged in some way to overcome the financial difficulties of legal training. This is merely a proposal by the way, in order to make some positive contribution to the very great difficulties which our Parliamentary Counsel are clearly undergoing with their very heavy work-load.
There is one aspect of the Report to which I believe no noble Lord has referred; that is, the distinction made in the approaches to legislation by British Common Law traditions and Continental codified systems. This emphasises the tendency of Western European countries to state general principles in clear and comparatively simple terms, while British Statutes tend to place the emphasis on certainty as opposed to simplicity and clarity, with consequent inclusion of detail. To my mind, it is not possible to consider the respective merits of the different forms and substance of Statutes, without considering the very different legal systems which may protect the citizen from abuse of power by the Executive or by administrative authorities.
For example, Germany has a legal Constitution which, to some extent, can control the interpretation of a Statute and it also has a supreme administrative court available for the redress of grievances. As is well known, France has a conseil d'Etat, which can exert considerable control over draft legislation and which has its own case law. If we were to simplify our Statutes and merely have them as 1029 guidelines, there would be very little protection for the citizen. If general principles only are to be stated, or if, at least, this is to be regarded as an ideal system, will the laws governing interpretation by the Judiciary also be widened? The use of travaux préparatoire is a common feature of Continental systems, so that the intention of the Legislature can be ascertained by the reading of these preliminary and official reports.
This may or may not be desirable in all British courts, from magistrates' courts upwards, in view of the different types of training and career structure in Britain compared with Continental judicial systems; but wide general powers of drafting can result in grave consequences for the citizen. We have had a recent example in Davmond v. South West Water Authority; and I believe that the noble Lord, Lord Airedale, referred to Section 30(1) of the Water Act. The noble and learned Lord, Lord Wilberforce, commented that he could understand the advantage of having a flexible power, but it remained surprising that Parliament could have passed so vague a provision. I quote from The Times Law Report of 3rd December 1975. Of course, there were serious financial consequences as a result of this very widely drafted power being given to a water authority. So that, while agreeing with the desirability of simpler and clearer Statutes, these should not be introduced without adequate, speedy and readily available safeguards for the individual who may be the victim of administrative abuse. Simplicity and clarity may be bought at the price of the protection of the basic rights of the individual.
Again, if Statutes are to be drafted with the exclusion of detail, it is not so much the Judiciary of whom I should be afraid, as is perhaps indicated in paragraph 19.14, but the Executive who would have immense individual powers exercisable through Statutory Instruments, Circulars, Directives and notices. This point has already been referred to by my noble friend Lord Brooke of Cumnor, who has gone into this matter with great thoroughness and in detail. In fact, we have a case in point; that is, that of Congreve v. Jenkins. That was a question of whether or not there was an abuse of powers given in the 1030 relevant Act. Both of the cases which I have cited have left Parliament open to the attack—justifiably, in my view—that too much legislation is being passed through the Parliamentary machine without sufficient expert attention being given to it by Parliamentarians.
The next chapter to which I wish to refer very briefly—because I support absolutely the recommendations made and because it has already been referred to by many noble Lords, particularly the noble and learned Lord, Lord Gardiner—is in support of further consolidation of legislation. If the noble and learned Lord would only go out to dinner once more and make another after-dinner speech, perhaps we should have even further and better and quicker improvements, because there was obviously a most desirable result of the after-dinner speech to which he referred.
With regard to explanatory memoranda, to which reference is made in Chapter XV—and this is almost the only sentence with which I do not find myself entirely in agreement with Sir David Renton and his Committee—paragraph 15.17 states:The practice of Government departments with regard to: post-legislative explanatory material is well established and appears to serve its purpose adequately.With respect, that could have been written only by a lawyer, because anybody who has been concerned with social work and has had to deal with social welfare legislation, supplementary benefits and family income supplement, where so much depends upon the individual making an application for benefit, knows that there is no explanatory material available and any which used to be in the post offices could have been understood only by a Chancery lawyer. I believe that the Department of Health and Social Security have recently made great efforts to make their benefit schemes more clear, and they have at least put up notices in places where people who need these benefits are able to read them. But I suggest that paragraph 15.17 is slightly over-optimistic and rather overstates its case.
I am very much in favour of doing by computer anything which saves one's own hand. As many noble Lords know, the Celex system is already working in the institutions of the European Community. 1031 Already there is one retrieval system in Brussels and another in Luxembourg. Much of the Community law has already been analysed and programmed on to it, including a certain amount of case law. Therefore, I hope that any system which is to be programmed on to computers in this country will be co-ordinated with Celex because it will be used in conjunction with Community law. It would be beneficial for those whose responsibility it is to look into this retrieval system also to study the systems which have been set up in Sweden and Italy which are already, apparently, working with a certain amount of success.
A great deal has been said about scrutiny. During the debate in another place it was suggested that consideration should be given to the publication of Bills for comment and scrutiny before they are finally published in their draft form after First Reading. I have heard no comment this evening with regard to the way that this is dealt with in the European Parliament—the link between the European Commission and the Committee Members of the European Parliament who receive a draft Directive with an explanatory memorandum and are able to discuss the import of the Bill with the Commissioner and his legal and specialist assistants who can then explain what is meant by the draft Directive and its intentions. A certain amount of political discussion inevitably enters into the discussions. Nevertheless, whether you are in agreement or disagreement with the draft Directive you have a very early opportunity to discuss the difficulties with both the Commission and the people who are responsible for drafting it. Therefore, I support very strongly the recommendation that there should be some system whereby Parliamentarians could discuss non-controversial Bills of great complexity with the Civil Service and the Minister responsible. It would result in the better understanding and easier passage of such Bills through both Houses.
The analysis of the treatment of Scottish legislation provides ample reasons why Scottish people are dissatisfied with the Westminster Parliament. I know that noble Lords will join me in expressing our gratitude to my noble friend the Duke of Atholl for having given us the benefit of his experience in serving on this Com 1032 mittee. I should add that we are grateful to have him here tonight as, indeed, we are grateful for the presence of the noble Baroness, Lady Bacon. Both of them have spoken with what might be called, "their feet on the ground." Whether the noble Duke spoke as a man in the street and whether the noble Baroness spoke as a woman in the street, 1 do not know, but certainly they have made a great contribution to the debate and have given us the benefit of their experience of sitting on this Committee
With regard to Anglo-Scottish legislation the comments in this Report are certainly not unjustified regarding the time to be given and the attention needed to draft such legislation, in particular where there is a difference in terminology and law. The Report sets out the choice before Parliament both as to volume and as to simplicity and clarity. The Government are asked to give their views on the choice which will have to be made if the Legislature and the legislation for which it is responsible are to retain the respect of the citizens of this country.
We are grateful to the noble and learned Lord the Lord Chancellor for having indicated in the second half of his speech the areas where he and his colleagues are in agreement with the recommendations. Certainly we hope to hear more from him this evening, and perhaps later when the debate has been considered and the noble and learned Lord is in a position to give us the final decision of the Government on this Report. The Report was presented to Parliament in May of this year, but the spate of legislation which has followed since that month does not indicate that any heed has been paid by the Government to this valuable document, which is an example of the lucidity, clarity and precision which we are hoping will be incorporated in our future Statute Law.
We from these Benches should like to thank the noble and learned Lord, Lord Simon of Glaisdale, for having given us the opportunity to discuss and debate this matter and to draw the attention of the Government to its contents. The Government are, therefore, urged to take note of the Report, to consider its recommendations and to take appropriate and speedy action in acceptance of the conclusion of the Renton Committee; 1033 that is, that both Government and Parliament have a clear responsibility for the condition of the Statute Book.
§ 7.45 p.m.
§ The LORD CHANCELLOR
My Lords, with the leave of the House and with the encouragement of the noble Baroness, I should like to make a few observations about some of the matters which have been raised that come within the ambit of the responsibility of the Government. Before I do so, may I assure noble Lords that just as the Government will consider with very great care—and, indeed, approbation in many cases—the recommendations of the Renton Committee, some of which we are already, as I indicated in my speech, putting into effect, so also shall we consider most carefully the suggestions which have emanated in this debate and the comments which have been made on those recommendations.
My noble friend Lord Hale agreed that the problems we have been discussing are not easy. As he has pointed out, we face a difficult phase of expanding legislation, and the problems to which it gives rise, at a time when our very constitution is like a bubbling vat with all kinds of yeasts being added to it—domestic yeast in the field of devolution, our involvement in the EEC, with all the problems relating to adjustment to legislation emanating from there, and the relationship between the jurisdictions of our country and those of the EEC. Therefore, it is more important than ever at this moment in our history that we should get our legislative processes and our legislation as right as we can.
The noble Duke, the Duke of Atholl, asked me whether or not it would be desirable to have a Scottish lawyer on the Government Benches in your Lordships House. Of course, I should welcome greatly such an acquisition, but unfortunately there are other demands upon the Ministerial establishment, by which I mean the number of Ministers who are available in Government. However, it may well be that the Prime Minister will consider the matter. So far as I personally am concerned, the "pursuit of the pursuers", and other complex characters in the law of Scotland, always fills me with trepidation.
The noble and learned Lord, Lord Morris of Borth-y-Gest, asked whether 1034 in the interpretation of Acts of Parliament in the courts use could be made of specific reports referring to the Statute in question, and the noble Baroness referred to the possibility of our being relaxed hitherto about references to trauma preparatoire as part of our procedures. As these are eminently matters which we shall have to consider when dealing with the approach to the new legislation on interpretation of Statutes, we shall certainly take on board these interesting suggestions.
Turning to the matter of scrutiny to which the noble and learned Lord, Lord Morris of Borth-y-Gest, referred, he will recollect that Recommendations 106 and 107 of the Report are important. The Parliamentary Committee which I suggested would be set up to deal with these proposals will no doubt consider carefully those recommendations and the more extended proposal of the noble and learned Lord. Like others he gave us some illustrations of the apparent absurdity of some of our legal provisions, and he referred in particular to the case of the Act relating to pollution in navigable waters and whether in the context of a section of that Act containing the words:The company owning, or the captain of the ship"—the word "or" could be translated as "and" for the purposes of the Act. I was endeavouring to persuade their Lordships, sitting judicially, that that was so. I failed to carry the noble and learned Lord, Lord Morris of Borth-y-Gest, with me on that occasion, but, happily, I think the noble and learned Lord, Lord Simon of Glaisdale, came to my side.
The point I wanted to come to was that this is not a new question. It arose in the interpretation f Magna Carta, in the famous Chapter 39, as to whether "vel" meant "and" or "or" or "and/or". That was a matter of interesting comment at the time of Cooke and the rest of them in the 17th century. So there is nothing new in the dilemma of language, whether it is in Latin or in English, or even conceivably in the laws of Hywel Dda in Welsh.
My noble and learned friend Lord Gardiner raised some questions to which, like all of his questions, there are no easy answers. Responsibility for Parliamentary Counsel and for the Office of 1035 Parliamentary Counsel is manifestly a matter within the responsibility of the Prime Minister in determining what the range of duties of Ministers should be, but I will certainly see that the words of my noble and learned friend are drawn to the attention of the Prime Minister.
The question of manning and the training of Parliamentary Counsel has been referred to many times in the course of the debate, and of course they are both important matters. As the Renton Report indicates, and as I indicated in my speech, the highly specialised nature of the work of Parliamentary Counsel puts severe limitations on the scope for finding experienced professionals to join the office. Obviously, people of first-class ability are required, and experience has shown that it is best to look for young people with really good honours degrees, and to place rather less emphasis on their length of service in either branch of the legal profession. On joining they serve a long period of apprenticeship and, as the Report has told us, it is generally accepted that it takes about 10 years before a draftsman can handle a big Bill under pressure.
It is this long period of learning the job which makes any effective, and certainly easy, extension of a body of draftsmen very difficult, and indeed a slow business. But we have had some success recently in acquiring the services of two more professional staff to join full-time. Vacancies are advertised and competitions held periodically by the Civil Service Commission, and a competition is planned for 1976. In addition, I assure the House that contacts are being maintained in the universities and in other potentially fruitful recruiting areas. I can give the House this word of comfort, that to judge from the number of inquiries that have been received in recent months about the possibilities of a career in the office, the prospects for 1976 are reasonably promising.
As to training, the Renton Report pointed out that the establishment of a postgraduate course in legislative drafting should reduce both the period of apprenticeship for new recruits and the training load on senior draftsmen. First, Parliamentary Counsel has for some time been considering a number of possibili 1036 ties in this respect, and I understand it is hoped that within the Parliamentary Counsel Office there will be training for junior members when staff allows and makes possible the release of a senior for that purpose. That is the eternal problem. At any rate it is a matter which is very much in mind, and I hope that at least that information will give some assurance to my noble and learned friend Lord Gardiner.
He may, however, be interested to know, in relation to his assertion (if I may put it in that most friendly way) that he knows of no democracy where control of Parliamentary draftsmen is not exercised by the Minister of Justice or the Attorney General, that apparently is not so in the United States of America, where each Federal Government Department does its own drafting and Congress has a service for Private Members. Whether any lesson can be drawn from that by way of example or difference I do not know, but, as the noble and learned Lord will imagine, I have not been unsympathetic to the view he has expressed as to where responsibility might lie ministerially in this field. I cannot say more, nor dare I say more than that at this stage.
I will not enter into the criticism made by the noble Lord, Lord Molson, about full stops and shorter sentences, and the differences between Sir David Renton and himself I must leave for them in due course to sort out. This is yet another example of the many-sidedness of truth, especially when the trust is considered in relation to drafting practices. At any rate I approve of Recommendation (16) in the Committee's Report.
The noble and learned Lord, Lord Denning, through having to sit judicially himself, did not have the advantage of listening to the early part of the debate, but lest he might be interested to read what was said he might care to know that in recent legislation, and indeed earlier, we have been using examples to illustrate what Parliament intends in a Bill and what the Bill means. I have recently introduced into the House two Bills which do the very thing which he commends; namely, the Limitation Act 1975 and also the Children Act, and I would draw his attention to Recommendation (9) in the Report, with which I agree.
1037 I am grateful to my noble and learned friend Lord Stow Hill for the tribute he has paid to Parliamentary draftsmen. Indeed, that has been universally echoed throughout this debate, and it was cheering to receive recognition from at least one noble Lord of the fact that Government too have their duties, just as they have their problems. The Government are examining carefully the Report of the Committee on Statutory Instruments presided over by the noble Lord, Lord Brooke of Cumnor, and I certainly take note of the importance he attaches to the examination of the problem of delegated legislation at the time when the problems and the matters raised in the Renton Report are being considered.
The noble Lord, Lord Wigoder, has emphasised the importance of consultation when Government are preparing legislation with bodies outside which may be both informed and interested. I entirely agree with that emphasis. Indeed, part of the success and value of the Reports of the Law Commission is due to the fact that the Commission takes very great care to embark upon a wide process of consultation. As to explanatory material, the noble Baroness, Lady Elles, referred to the need for this. So far as social security legislation is concerned, a vast amount of simple, explanatory material has been issued, although I am bound to say from my recollection as a Member of Parliament holding a "surgery", this aspect of explaining to constituents letters emanating from the Department of Health and Social Security was always one of the most agonising moments during the so-called "surgery". Whether "surgeries" did any good or not, I do not know. If I may be permitted to reminisce, I remember Winston Churchill in the House of Commons on one impatient occasion referring to the then Chancellor of the Exchequer, Hugh Dalton, and saying, "He calls himself a doctor, but I have yet to hear of any patient he has ever cured". That is totally irrelevant to what I have said, but I am grateful for the debate that has taken place. I am grateful to the noble and learned Lord. Lord Simon of Glaisdale, for introducing the debate, and finally, and yet again. I am grateful to Sir David Renton for the excellent quality of the Report he and his Committee produced.
§ 8.2 p.m.
§ Lord SIMON of GLAISDALE
My Lords, your Lordships have been privileged to have a reply to this debate from the noble and learned Lord on the Woolsack and that, I hope, will acquit me of discourtesy if I do not reply at all to the points raised in the debate. But I cannot allow the occasion to go by without expressing my gratitude for the most notable contributions that have been made to this debate by your Lordships. I must also be allowed to thank your Lordships for the very kind and generous personal references to myself—some, fortunately for me, all too flattering, which I am able to discount on the grounds of long companionship and friendship.
My Lords, my Motion was to draw attention to the Renton Report, and to move for Papers. With regard to drawing attention to the Renton Report, the debate has evoked a variety of experience, a fertility of suggestion and a profundity of political wisdom, which will undoubtedly further the cause that has animated all your Lordships today. As for the Motion for Papers, nobody has been able to explain to me what Papers I should get if the Motion were carried. I have got more papers already than I can manage and, therefore, I ask the leave of your Lordships to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.