§ 7.28 p.m.
§ The Solicitor-General (Mr. Peter Archer)
I beg to move,That this House takes note of the Report of the Renton Committee on the Preparation of Legislation (Command Paper No. 6053).On 7th May 1973 the then Lord President appointed a Committee on the Preparation of Legislation, under the chairmanship of the right hon. and learned Member for Huntingdonshire (Sir D. Renton). In May 1975 that Committee presented a very full and careful Report. I am sure that the House would wish me, right at the outset, to express our indebtedness to the right hon. and learned Gentleman and his Committee for the valuable and comprehensive Report which they presented and for the sheer hard work which led to it.
The Report points to the startling fact that there has been no inquiry of this kind for 100 years. The last was the Select Committee of 1875. In that time there have been many complaints about the form of our legislation, and it is interesting to observe, from the Committee's historical chapter, that those who have been complaining have simply been echoing what has been said by many of our distinguished forebears for 400 years. I note that King Edward VI is recorded as having commented:I would wish that…the superfluous and tedious statutes were brought into one sum together, and made more plain and short, to the intent that men might better understand them.The purpose of this discussion is to facilitate the task of at least three groups of people. First in point of time are those who deal with a proposal. During the law-making process, in particular, Members of both Houses require to see clearly and without undue labour the proposal which they are asked to consider. Secondly, there are the lawyers and other experts, who are required to explain and apply provisions after they have reached the statute book. Thirdly, there are the members of the public who may be affected by it but who possess no special training or expertise in following legal technicalities.
In recent years there has been much discussion, very properly, about the need for involving in the law-making process 115 the public, for whose benefit the law exists, who suffer if it is inadequate and who are asked to observe and respect it. The public no longer play a purely passive rôle in law making. They ask for legislative intervention in an increasing number of fields. They insist on being consulted in the framing of the law and this entails producing proposals in a form which is intelligible to the public.
These objectives are not always mutually compatible, and much of the Committee's work was concerned with balancing the respective needs of these three groups. Since the publication of the report, Ministers and officials have, of course, been giving it detailed consideration, but before taking substantive decisions on a number of the more important proposals we wish to take account of the views of the House. I therefore hope that this will be a take-note debate, in both senses of the term. The Government's purpose is certainly to take note of what is said tonight before reaching conclusions.
I hope that the House will understand if I do not express any dogmatic conclusions. Indeed, it might be a matter of complaint if I were to do so, particularly if I were to deal with all the 121 recommendations. It would have defeated the purpose of the debate if the Government had taken decisions in advance of giving hon. Members an opportunity to express their views, and I should be reluctant to say anything which might appear to pre-empt an open-minded consideration of what is said.
What I propose to do in these opening remarks, therefore, is simply to indicate, in the general Order followed by the Report, the Government's initial views on a few of what seem to be the most significant of the Committee's proposals. Then, with permission, Mr. Speaker, I would hope to deal briefly at the end of the debate with any points that appear to call for reply, but basically I propose to take this opportunity to listen to views about the Report rather than to pronounce decisions of the Government upon it.
First, it is obviously fundamental to the quality of parliamentary drafting that there are sufficient and properly trained parliamentary draftsmen available to do the work. The Committee rightly regards 116 this as a matter of the highest importance, and proposes the establishment of a training course in drafting and the recruitment of more draftsmen as a matter of high priority.
It is right to say at this point that those of us who have had the opportunity of seeing at close quarters the work of the parliamentary draftsmen are compelled to express admiration for their quality as lawyers and for the clarity of their minds. The setting up of the Committee was in no way a criticism of their work. The draftsmen are themselves conscious of the difficulties imposed by an attempt to meet a variety of objectives, including that of maintaining and improving the quality of our legislation, and of constantly working under the pressure of inadequate time and chronic undermanning. I believe that the Report not only confirms the inevitable constraints on the aim of achieving simpler legislation but also emphasise the constructive efforts continually being made by the draftsmen within these limits.
The Government are aware that there is a shortage of draftsmen and fully share the Committee's concern in this matter. Their aim is a gradual building up of the strength of this office. However, as the House will appreciate, the highly specialised nature of the work necessarily limits the scope for recruiting people of the right calibre. Moreover, as experience has shown that it takes about 12 years before a drafsman can handle a big Bill under pressure, any major expansion of the body of draftsmen is bound to be a slow process.
The need for more draftsmen has arisen in recent years more quickly than the office can expand. I understand, however, that judging from inquiries recently received the prospects for the competition planned by the Civil Service Commission for 1976 are promising. As is to be expected, this career is attracting candidates of very high calibre. One more professional member has already joined and another is about to join the three full-time and one part-time draftsman working at the Law Commission. This will restore its full drafting strength, as proposed by the Committee.
The Committee pointed out also that in the past we have not encouraged an interest in statute law in our university 117 courses, and it proposed the establishment of a post-graduate course in legislative drafting, which might reduce the period of apprenticeship for new recruits and the training load on senior draftsmen. I understand that First Parliamentary Counsel has been for some time considering this and other training possibilities but, as the report recognises, it is not easy to find an experienced draftsman to run such a course.
The first important group of drafting recommendations made in the report, which has wide implications and to which I should like to draw the attention of the House, is the group in Chapter X referring to the possible scope for increased use of "statements of general principle" in the drafting of legislation.
The Report recommends only a cautious extension of the use of such statements in limited fields, normally not including Bills of substantial political or administrative content. But if this practice were widely adopted it could have very considerable effects on parliamentary procedure and the organisation of our business. This aspect of the Committee's Report, therefore, might best be considered in the context of the impending review into our procedure generally which my right hon. Friend the Lord President of the Council has at present under consideration. Meantime, it is a matter on which the Government would be particularly glad to know the views of hon. Members.
The next principal sections of the Report deal with detailed questions of drafting technique and conventions in legislation generally and—in Chapter XVII—in relation to fiscal legislation in particular. In general the Government welcome these recommendations as a valuable guide and encouragement to the best drafting practice. Clearly, however, in some instances there will be differences of opinion on the question whether a particular recommendation would in practice provide a more intelligible text.
For example, I understand that questions of increased printing aside, the draftsmen would not agree that schedules of amendment should normally be in tabular form of the kind recommended in Recommendation (28), and there are various other recommendations which will need to be critically considered 118 in the light of their potential impact on the already heavy burden of our printing resources.
Study of all these recommendations will continue in consultation, as necessary, with the Statute Law Committee and with the House authorities. Special consideration is being given by the Revenue Departments to the proposal concerning the drafting of fiscal legislation, but the views of the House would be welcomed.
The Committee was quite clear that in these matters its indications were not intended as inflexible rules and that Parliamentary Counsel must continue to be permitted a degree of discretion in adapting drafting techniques to the needs of particular statutes. Presumably it was not intended to suggest, for example, that the draftsmen must always use fractions and mathematic formulae automatically, regardless of context, or limit the length of paragraphs in some standardised way.
It should also perhaps be pointed out that a number of the suggestions made by the Committee, including some of the most important—for example, that on the practice of textual amendment, recommendation (41)—are already current drafting practice, as the Committee recognises. As the House will appreciate, all this area is very much an ongoing process.
I found myself particularly interested by the chapter on consolidation, because I was privileged for a number of years to participate in the work of the Joint Select Committee on Consolidation Bills. This provides me with an occasion to offer a tribute to the work of that Committee and its Chairman, Lord Simon of Glaisdale. I do not normally have that opportunity, since consolidation matters are usually dealt with in the House by my hon. Friend the Member for Accrington (Mr. Davidson). Parliament and the public may not always be aware of how well served they are and of the hard, detailed and not always exciting work of that Committee. Together with the Law Commission, that Committee has enabled us very greatly to expedite the work of consolidation.
I note the Committee's observation that, in spite of all our running, we are not even staying in the same place. The backlog is lengthening. The Government note what the Committee says on that matter.
119 I should like to refer now to the Committee's recommendations in two other fields—explanatory aids and computerisation. In each of these, very considerable progress has been made in recent years, and both offer practical hope of easing the task both of the draftsmen and of the consumer of legislation.
As everyone must recognise, I think, there are inevitable limits to the extent to which the actual text of many Bills can be made readily intelligible to all those who, for one reason or another, need to consult them. The availability of aids to understanding outside the legal text is, therefore, one of considerable importance.
As the evidence to the Committee shows, this can take many forms, both during the passage of legislation and after enactment. What is needed in a particular case depends on the nature of the Bill and the various classes of user involved. The Government fully accept the importance of this matter and will continue to develop these aids, adapting their practice, as the Committee proposes, to the circumstances of each case.
Within this general undertaking, however, I should perhaps enter an early reservation in relation to Recommendation (58) and its proposal that explanatory notes might be printed opposite the clauses to which they relate. This could involve a major additional printing burden, and I am afraid that the Government are unable to give any undertaking in this respect at present. I note that some members of the Committee also had doubts about the practicability of this proposal.
Concerning the Committee's proposals on computerisation, there is, as the House will be aware, a rapidly growing interest in the use of computers in relation to law generally. The Sub-Committee of the Statute Law Committee considering this question, chaired by Lord Justice Scarman, will be taking careful note of the recommendations made in the report, and I understand that two members of the Committee are now serving on this Sub-Committee.
I also understand that the Central Computer Agency supports the Report's recommendations, since, broadly speaking, they accord with the objectives 120 which both Her Majesty's Stationery Office and the agency have been pursuing. I think, therefore, that the Government's attitude to this section of the Report can be summed up as one of welcome, with an assurance that the recommendations have been noted by the appropriate bodies concerned.
I now turn to the recommendations in the Report dealing with new parliamentary procedures designed to diminish the need for complex statutes and for reducing their bulk. Some of these proposals would require legislation. The proposals include the possibility of a new procedure for parallel Scottish Bills and, where a parallel Scottish Bill has not been introduced, for some form of simplified re-enactment of the Scottish provisions. The Report also proposes the abolition of Appropriation and Consolidated Fund Acts and new proposals for incorporating drafting improvements in statutes. Such proposals, if implemented, would significantly affect both Houses. In the Government's view, it would be appropriate for these proposals to be considered further by a parliamentary body, either in the form of a Joint Procedural Committee or in some other way.
With regard to the proposal—No. 100—that there should be consultation between the two Houses on harmonising the form of amendments, this would seem to be a wholly advantageous move, and I believe that discussions are already in hand.
As to the Committee's recommendations with regard to the intervals between the stages of legislation, I do not think I can say more than that the Government accept their responsibilities in these matters—but, as the Committee and the House will appreciate, there are bound to be some occasions when these intervals would not be practicable.
The final section of the Report concerns the Committee's proposals for a new Interpretation Act as a further aid to the readier understanding of the effect of statutes. The Government fully recognise the need for legislation in this field. As to its scope the Report indicates that there is some controversy about certain of the Law Commission's proposals, and these are matters which will need to be considered further in consultation with the Statute Law Committee.
121 In conclusion, I wish again to thank the Committee for its realistic and practical approach to these matters. There is no magic formula which will produce clearer legislation, and the problems which arise generally do so from genuine conflicts of competing needs and objectives.
As I said earlier, what hon. Members, lawyers and the general public require of legislation can differ very widely. What is best suited to meet the structure of parliamentary debate may not be best suited to the needs of the courts. What is intelligible to the tax lawyer is often bewildering to the ordinary taxpayer. Draftsmen and Departments, I believe, are fully aware of these potential conflicts and have made considerable progress in recent years in reconciling them, both in the texts of legislation and by the development of explanatory material. But we have a long way to go, and I am sure that the effect of this Report will be to assist and accelerate that progress.
§ 7.45 p.m.
§ Mr. John Peyton (Yeovil)
While I welcome very much the assurance of the hon. and learned Gentleman the Solicitor-General that the Government do not take a dogmatic view of this matter and that they have not made any decision in advance of the debate, I nevertheless find it difficult to resist the conclusion, from the way in which he rather galloped through his speech, that perhaps this was not receiving quite the weighty attention from the Government that it deserves. Perhaps I am being unfair, but I hope that this very important report will be taken very seriously indeed.
I certainly echo what the hon. and learned Gentleman said in thanking my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) and the distinguished members of this Committee for their extremely thoughtful and thorough piece of work, which was well overdue. It is certainly not just another report to be dismissed with a polite "Thank you." It is a serious study of a problem which the volume of legislation has made urgent, and it is a restrained and politely worded reminder of that legislative misconduct of which all Governments have been guilty as initiators and to which all of us have been the accessories.
122 I learn with horror from the Report that there are some 3,480 public general Acts of Parliament—or there were in 1974—in whole or in part in force. We have been adding to the statute book at the rate of 1,500 pages a year. If that fearful reflection does not cause all of us to shudder with horror at what we have done, we are lacking in modesty and shame. We lack unhappily the toughness of Lord Keeper Bacon who made the splendid comment:All contrarieties should be scraped from our books.How much we need a real scraper here to clean out those books and purge them of some of the messy contributions for which we are responsible.
The Report goes to the heart of the matter fairly early when pointing out that it is no good tinkering with it but that something must be done about the volume, it being quite clear that the machine we have is quite incapable of absorbing and digesting the volume of legislation which it is called upon to bear. Chapter 1, paragraph 1.10, dealing with this matter, deserves to be quoted in full: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. Parliamentarians cannot have it both ways.The hon. and learned Gentleman echoed that point. The Report continues:If they really want legislation to be simple and clear they must accept Bills shorn of unnecessary detail and elaboration. We cannot emphasise too strongly that the Government and Parliament have clear responsibility for the condition of the statute book.My right hon. and learned Friend and his Committee have every justification for issuing that very sharp reminder.
Later in the Report, Chapter VII, paragraph 7.10 contains the following words:Either the flow of legislation must be staunched so that the draftsmen may have more time in which to make their Bills more intelligible, or, if this is impossible, then in spite of the shortage of time, statutes must be enacted by Parliament in a form that will make it easier for them to be understood by those to whom they are addressed.123 I call particular attention to those last words. How many of us in passing some of the indigestible verbiage which now defaces the pages of our statute book ever think of the burdens which we put upon the ultimate user whose duty it is to understand and implement it?
The Report rightly contains throughout its pages an implied tribute to the parliamentary draftsmen, and in paragraph 6.21 the Committee pays them a particular and well-deserved tribute. We who are the co-culprits in this matter with them would do well to echo that tribute and, indeed, trace the faults back to the thoughtless ambitions of Ministers whose practices are far more conditioned by their ambition than they are by thought for the result.
§ Mr. Peyton
I did not distinguish in any way. The hon. and learned Gentleman makes pinching little remarks of that kind, but I have been careful to use the word "we" throughout. He has been in the House a long time, and he also ought to take his share of shame. He is certainly entitled to it.
The specific complaints made in the report are of direct importance, and we find them set out in paragraph 6.2 grouped broadly as follows. First, the language used is described asobscure and complex, its meaning elusive and its effect uncertain.The second charge is over-elaboration, caused by an excessive desire for "certainty".
Next, the structure is criticised—The internal structure of, and sequence of clauses within, individual statutes is considered to be often illogical and unhelpful to the reader.What a wonderful choice of words. To describe our modern statute law as "often unhelpful to the reader" is one of the most charming pieces of understatement that I have ever come across, and I congratulate my right hon. and learned Friend, to whose kindly hand I naturally attribute that remark.
The fourth complaint is directed to arrangement and amendment, the procedures for whichmake it difficult to ascertain the current state of the law on any given matter".124 The report goes on in greater detail later to point out the effect of not making the law clear. We must recognise that we deprive the citizen thereby of one of his basic rights, and I shall come back to that in a moment. Meanwhile, I draw to the attention of the House the comments reported in Appendix B. I shall not weary the House by quoting them all, but I mention, in particular, the magisterial rebuke of Lord Justice Russell in 1966 thatThe drafting of this section appears to me calculated to postpone as long as possible comprehension of its purport".That is a fairly adequate and terse condemnation which was, no doubt, richly deserved by the passage of law there involved but which could equally well be applied to many others.
We are grateful also to Lord Simon of Glaisdale—this appears on page 28 of the Report—for drawing attention to a passage in one statute which deserves to go on record once again in this Chamber:For the purpose of this Part of the Schedule a person over pensionable age, not being an insured person, shall be treated as an employed person if he would be an insured person were he under pensionable age and would be an employed person were he an insured person.
§ Mr. Deputy Speaker (Sir Myer Galpern)
I am glad that the right hon. Gentleman has referred to that. Perhaps it would apply to me.
§ Mr. Peyton
How can I possibly reply to such a modest claim on your part, Mr. Deputy Speaker? I should not for a moment associate you with such rubbish as that. I regard you as being in a very different category altogether, if I may say so with great respect.
§ Mr. Deputy Speaker
I hope that the right hon. Gentleman will have some compassion for the office which I occupy. According to what he has been saying, I might be created a superannuated man.
§ Mr. Peyton
I can only assure you, Mr. Deputy Speaker, that not one of us would wish to see you in any way involved with such stuff as that.
Lord Simon is quoted on page 61 also as defining the objective which should be 125 in the mind of draftsmen and all legislators—Desirably, the language of legislation should be as near to ordinary speech as precision permits".Again, we come to the charge of over-elaboration—in other words, that Parliament is not content to enunciate broad general principles but seeks always for certainty. That desire for certainty is thought sometimes to emanate from a distrust of the courts, and I endorse here the comment made by two learned Scottish judges which is reported on page 29.
However, I believe that the anxiety of Parliament to search for certainty springs at least as much from the hostility of back-bench Members of Parliament towards Ministers, who are not always fully trusted by their erstwhile colleagues who often feel that they go to other fields for advice and are wont to forget the reasons that brought them here in the first place.
We on this side would wish warmly to endorse the suggestion made again and again in the Report that it is better to set out the principles in clauses and the details in schedules. On the question of the structure of Bills, I endorse also the Committee's recommendation that the intent should be made clear, since not only would this be an interesting and valuable aid to those who have to study a Bill—and in due course an Act—but it would be a valuable discipline on the Ministers who launch these measures on their way.
I endorse the suggestion that the law should be more happily arranged with a view to making possible convenient access to amendments where these have been made. The Report says on page 36:The law should be readily ascertainable and reasonably clear.It goes on:To the extent that the laws do not satisfy these conditions, the citizen is deprived of one of his basic rights and the law itself is brought into contempt. Whatever may be the pressures to increase the volume and extend the scope of legislation, it is our firm view that legislation which is complex and obscure may for that very reason be oppressive.Those words should be remembered and borne in mind by this Government and their successors. On the following page, the Report says: 126The way in which the law if drafted presents, at times, an impenetrable barrier to understanding.The Report is quite right to indicate the need for forward planning and an early start to legislative projects. We have abundant evidence that legislative projects are launched here without adequate planning, consulation or thought. Too often projects are brought in at the last minute. I am not blaming the parliamentary draftsmen, who have to labour under considerable pressures.
The Report points out how much consolidation of the law is handicapped by the insufficient numbers of available draftsmen. I warmly endorse the recommendation that the pace of consolidation should be accelerated. The Report says in Chapter 10, paragraph 3:the interests of the ultimate users should always have priority over those of the legislators.Legislators would do well to endorse that comment. The conflict between certainty and clarity is one to which we all ought to give greater attention.
The statement in the Report that the demands for immediate certainty have often been more insistent than necessary is abundantly well justified and, one might add, such demands are often self-defeating. The adoption of the "general principle" approach would lead, according to the Report, to greater simplicity and clarity. I agree with that and with the conclusion of the Report that a statement of purposes would be helpful in producing a degree of clarity. I hope the Government will take this recommendation seriously and act on it.
The Report recommends that amendments to the law should be made whenever possible by changing the text of the original law, and I think that that would be helpful.
There are many other matters which arise from this interesting and important Report, including the length of sentences used in Acts, definitions, long clauses, intervals between stages of legislation, the amendment of drafting errors after the parliamentary process has been completed, a review of the structure and language used by the Statute Law Committee, the need for a new Interpretation Act and the use of computers, all of which have to be dismissed, in order 127 that I shall keep my speech within decent bounds, much more shortly than they ought to be. They are, nevertheless, matters of very great importance to which I hope the Government will give careful thought.
I do not blame the Government, but I regret that the debate is taking place in such a thinly populated house. My right hon. and learned Friend the Member for Huntingdonshire and his committee should be assured that the attention their Report deserves and will, no doubt, receive is not reflected by the attendance here. This is a very important subject to which my right hon. and learned Friend the Member for Huntingdonshire has made a signal contribution after a very distinguished parliamentary career.
§ 8.6 p.m.
§ Mr. Bruce George (Walsall South)
Looking around the House, I am impressed by the wealth of skilled and experienced parliamentarians. It may be considered rather impertinent that someone who has been a Member for less than two years should dare to comment on such an important subject. I hope that my remarks will be of some interest, as perhaps my views are, to some extent, those of an outsider, as I have not yet succumbed to the parliamentary embrace, as have others with infinitely longer experience of the House.
Our political and economic decline has led us to re-examine the workings of our traditional institutions. Since the war, we have managed to make the wrong decisions in almost every area of our public life. We do not have a lot of time to ponder over the mistakes, or over the reforms we ought to make, as though we were philosopher kings. We must respond very urgently to the need for institutional reform.
It is absurd of us to ask industry to adapt itself radically and change if we, in the machinery of government and politics, appear to be so loth to make radical changes in our own institutions.
I very much welcome the Report. It is a succinct document, and it would have been ironic if it had been accompanied by enormous volumes of evidence, like some other reports. The Report is a very good contribution to 128 the re-appraisal process through which we are going. It concentrates on one stage of legislation—the initial stage—but sets it against the general background of the legislative and governmental process.
In my analysis, I want to look at the three stages of legislation. The first stage is the drafting and consultative stage. This is entwined with the second—the Parliamentary stage. The third is the administrative stage, where statutory instruments are promulgated. Legislation is a multi-stage and highly complex process. It is almost a "system" and a characteristic of a system is that one part is totally dependent on another part.
It would be an act of folly to analyse one stage of legislation in isolation from the other parts. My critique is of the legislative process generally, setting this against a background of decision-making in Government.
The twentieth century has exhibited an enormous increase in the power of the executive. Alongside this there has been a remarkable decline in the power of the legislature, not just in this country. That decline is a universal phenomenon. There are those countries where legislatures, if they ever existed, are now extinct, and there are nations which have legislatures with severely truncated powers.
In this country our system exhibits the greatest concentration of power and authority upon the executive Hardly anywhere else is a Government nominally so free to make decisions without constraints, such as powerful local government, a written constitution and a powerful Upper House. Under our system the Government have enormous independence of action, and therefore much of the blame for the ills affecting society today can be placed upon their shoulders.
The executive may have adapted itself to changed circumstances, albeit unsuccessfully, but the power of Parliament has declined, is declining and will continue to decline, unless we are able to adapt its procedures to changed conditions. Winston Churchill said of Parliament, during the war, that all he wanted was compliance with his wishes, after reasonable discussion. We in this House would see the legislature having 129 a much broader rôle than simply discussing legislation and then allowing the Government to make the decisions they were going to make anyway. I am reminded of what was said by Frederick the Great, who remarked that his people and he had a wonderful arrangement. He let them say what they liked and they let him do what he liked.
Clearly, there must be a bridge between the talking and the doing. We talk in our Parliament. The word "Parliament" comes from the French word parler, which means to speak—to talk. We produce mountains of paper, but we must still question whether the bridge has been built between the discussion in Parliament and the end product—namely, the making of decisions. We call ourselves by delightful and honourable titles. In some ways I think that for all we do on some occasions, we could call ourselves "honourable and superfluous Members".
Nowhere is the subordination of Parliament to executive clearer than in the process of legislation. Some countries have institutions which they call legislatures, and they actually legislate. That is something of a phenomenon today. In this country legislation is a function of government. In America there is the separation of powers between the executive, the legislature and the judiciary. They are not completely divorced, because of the system of "checks and balances". In this country the Government dominate the legislature, and in some aspects they have great influence over the judiciary.
It would be stupid and incorrect to say that this Parliament is in any way approaching the rubber stamp of an institution like the Supreme Soviet, but, clearly, we are much closer to that concept of a legislature than we are to the American concept of a genuine parliamentary assembly. We in this country need a strong and efficient Government, but I do not see that that is necessarily incompatible with a strong and efficient legislature. One could have a powerful legislative institution hand in hand with a powerful executive.
Let us return to the reality of the British situation. The Government dominate every aspect of legislation. 130 Professor Griffiths said, in a very good book recently published:The presentation of the proposal in the form of a Bill means that the ossification is well advanced. The most formative part of the whole process, the point at which the proposal may most significantly be changed is at the time when the departments are consulting with interests".Where do we fit in, in this institution, at this vital stage? My contenion is that we figure hardly prominently in the pre-parliamentary stages.
I am not in any way opposed to a close relationship between the Government and pressure groups. This goes back centuries. It certainly predates the democratic revolution in this country. Some writers have called it the "Old Whig" theory of representation, which lays down that almost any decision taken by Government without active consultation with affected organisations is seen to be on the very margins of legitimacy.
There has therefore been a long tradition in British Government that pressure groups and interested parties are closely involved in the process of legislation and government. One cannot help wondering, however, whether what goes on behind closed doors between private and public bureaucrats is of more importance than what takes place in this institution, either on the Floor of the House or even in Standing Committee.
We need greater participation by Members of Parliament in the process of legislation. Ministers, civil servants and senior pressure group officials do not command a monopoly of knowledge, skills and expertise. In this House there is an enormous reservoir of experience, which is not being properly harnessed. The rôle of Members of Parliament could be much more dynamic in the process of legislation. Parliament should have a more positive and purposeful rôle. Today, a great deal of legislalation consists of managerial decisions, made by Government decisions, governed only broadly by statutory authority.
Professor Griffiths' book, entitled "Parliamentary Scrutiny of Government Bills"—a voluminous research—points out better than almost anything the impotence to which the House of Commons has been reduced. Professor Griffiths covered three years, in which he discovered that there were over 4,500 amendments moved and discussed. Of these, 436 were moved by 131 Government back benchers and only nine were carried against the Whips. Opposition Members moved 3,000 amendments and, of these, 131 were agreed to by Government and only 13 were carried against the wishes of the Government. By looking at the process of the amendments to Government Bills Professor Griffiths is able to ask why, as back benchers, we put so much time into legislation when the rewards are so few. He points to the small number of Bills which have been significantly amended as a result of pressure by Opposition or Government back-bench Members.
I have looked at the limited rôle of Members of Parliament in the pre-parliamentary stage, and I have touched very briefly on their limited rôle in the second or parliamentary stage. I come now to the third stage of legislation—the making of delegated legislation. One academic said that, for the constitutional purist, legal and parliamentary controls are the most important, but they are, however, the least effective. Parliament makes, generally, a more superficial examination of statutory instruments. This is in no way a criticism of those who are seated on the appropriate Committee.
We know how difficult it is, and how unsuccessful efforts have been in the past, to move a Prayer or motion to annul a statutory instrument. These are institutional controls, exercised by Parliament over delegated legislation. They are generally formal and minimal. Generally speaking, our examination of European legislation would fall into that category too.
What can be done to arrest this decline in the rôle of Parliament in the machinery of government today? I believe that we have surrendered a large number of our powers. Many of them have been usurped One can almost point to a conspiracy between Government and Shadow Cabinet to contain the reform movement in Parliament. If the boat were rocked, if more power were given to Parliament and back bencher, however much one might eulogise the reform movement in opposition, the work of government would be more difficult. One suspects that there is a conspiracy of Front Benches to prevent meaningful reforms.
132 I think that the time has come when we should no longer remain a passive forum. We must reform and modernise our own house. I believe that, first, there must be a closer involvement of Members of Parliament in the formative stages of legislation—a much more meaningful rôle in the parliamentary stage. As a believer in an expansion of the Select Committee system, I should like to see more Standing Committees—
§ Mr. Deputy Speaker (Mr. George Thomas)
The hon. Gentleman has spoken for 15 minutes. I have no objection to that, but I am still waiting for him to make some reference to the Report under discussion, concerning the preparation of legislation. I hope he will keep that in mind.
§ Mr. George
I had thought that the points I made were not superfluous, but were linked to the whole process of legislation.
Secondly, I believe that there should be greater facilities for Members of Parliament to perform their rôle as legislators more effectively. I believe, too, that a number of institutional amendments can be made to make this Parliament much more effective. I believe that one should accelerate the trend to full-time Members of Parliament, to allow us more time to examine legislation.
I should now like to make some brief comments on the Report. The right hon. and learned Gentleman has made many useful suggestions, which I hope will be incorporated into our process of government. I am most interested in the chapter on the use of computers. I would not be able to participate in the process at all, with my dismal record in mathematics and science.
§ Mr. George
What the hon. and learned Gentleman said about the need for consolidation and simplification is most welcome, and obviously there cannot be many here who would oppose the employment of more parliamentary draftsmen. But there are one or two issues on which I oppose what the right hon. and learned Member and his Committee have written. I refer to the question of more 133 or less government. It is very easy to say that the more legislation there is, the less liberty there is for the people. I do not believe that there is any correlation between the size of the statute book and the degree of freedom enjoyed by individuals in this country. To say that if one diminishes the statute book one therefore enlarges freedom is quite nonsensical.
As one person said, if the volume of legislation were reduced, we could reach the situation in which freedom for the pike means death for the minnow. If we minimise the amount of legislation, we allow the more powerful sections within our community to take advantage of the absence of legislation. As a Socialist, I certainly feel that we should legislate more, and make this institution a more efficient machine for translating into reality the wishes of the electorate, of the parties, and of this legislature.
The next objection I make concerns the great support that the Report appears to give to the European system of law. There will be more and more problems arising as a result of the incompatibility, almost, between our own tradition of law and the European tradition of law, which, as was said, is based on Roman law and later developed by Napoleon, the arch-democrat.
The European tradition of legislation appears to be to express the law in terms of general principles and to leave it then to the courts or to the Government to fill in the details. The last thing I want to do is to allow the judiciary more flexibility in interpreting. What we have done in this country is to reduce the flexibility of judges, and this is something that I generally support. The general background of the judiciary is such that I am not totally inspired by its analysis of a situation. It is usually based on a very limited social experience. I have reservations about any system which would allow judges more opportunity of interpretation.
Legislation is very complicated, and could in many ways be made simpler. I am anxious to emphasise my view to the House that in dealing with legislation this institution has become an unsuccessful institution.
A hundred years ago, Walter Bagehot wrote that our political system could be divided into two parts—the "dignified" 134 and the "efficient" elements. The dignified were those who were part of the process of government but did not really do anything. Crossman made this point in a book about 10 years ago, when he said that we have, in Parliament, moved out of the efficient sector of government into the dignified sector of government and politics.
I believe that if the proposals of this Report, along with the other reforms that other hon. Members and I have mentioned, could be translated into reality, Parliament could be plucked out of this limbo, in which it has little importance, and enabled to play an important rôle in the machinery of government—a rôle, I suspect, that it has long since lost.
§ 8.27 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
The Session that mercifully comes to an end next week has been an agony for the legislative process. It is the climax of a series of Sessions each piling agony upon agony. The reason is that government has made exorbitant demands, first, upon parliamentary counsel, secondly, upon Members of Parliament, and, thirdly, upon the printers, each of those categories being almost broken down in the past decade as a result of government's exorbitant demands upon a machine that is not equipped to deal with the load that it is now made to bear. Until government modifies its demands upon the legislature in the way of which the hon. Member for Walsall, South (Mr. George) spoke, no amount of valuable recommendations such as those in the Report will cure the problem that we face.
There are 120 recommendations, most of which I support, but they do not deal with the inhibiting factor that makes us so ashamed of the products of our labours, the factor mentioned by my right hon. Friend the Member for Yeovil (Mr. Peyton) which is lack of time, energy and opportunity owing to the over-loading of the machine.
It is not only that. The statute book has been used by government not for the purpose of making law but frequently for the purpose of making propaganda. For example, I remember the old statute setting up nationalised corporations, which usually began something like this: "It shall be the duty of the Gas Board to provide clean gas at reasonable prices 135 throughout the realm." That is a duty for which there is no sanction if it is broken, a duty which is impossible to observe in modern circumstances, and which, when it was put on the statute book, was intended not to be law in any sense that we know but to be propaganda. That is one among many of the sins that government has committed.
Secondly, there is a reference in the Report—although I think that the vice is much worse than the Report indicates—to the order in which the various sections of Bills are often placed. They are often placed in such a way as not to lead the mind naturally on a logical process from one section to another but to enable the Committee stage to go as easily as possible from the Government's point of view. Some very important measures are often put in schedules, which are dealt with when the Committee is extremely exhausted and therefore go through much more readily. That is an abuse of the legislative process.
A new and horrifying abuse has grown up, started, I think, by the noble Lord, Lord George-Brown, when he was Secretary of State for Economic Affairs, in his Prices and Incomes Bill. That abuse is to put into a schedule the whole White Paper upon which the statute is founded. That is the ultimate in propaganda and the lazy man's solution. The schedule is put on to the Bill with a vague phrase such as "The board shall have regard to the considerations set out in the schedule"—an enormous White Paper—without emphasising which considerations shall have priority, which shall be binding, or which the Government fervently hope will be abandoned. We have had another example of that in the present Session with some of the Bills emanating from the Department of Employment. Government of all complexions has been guilty of debasing the legislative process. Those stratagems are part of that debasement.
I come to that part of the recommendations that affects me. I do so briefly, because many other hon. Members wish to speak. In particular, I see here some of my hon. and learned Friends who know more than I do about the process in question.
136 When I speak of that part of the recommendations that affects me I refer to those concerning the Statute Law Committee, a body which I first joined more than 20 years ago. Although I was then, and still am, its least distinguished member, I think that I have been on it for longer than anybody who is now there. It is described by my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) and his colleagues as exercisinga very healthy, expert and well-informed…oversight of public and private Bill legislation generally.We are very grateful for that commendation, but I regret to say that we meet only once a year, because the distinction of that body is such that everybody in Whitehall, Westminster and the Strand who is anybody is there, and only once a year can the Committee be gathered together altogether. That happens in December, under the distinguished chairmanship of a succession of Lord Chancellors. I am not sure that our "healthy, expert and well informed oversight" is quite as continuous as my right hon. and learned Friend would have us believe. However, it is nice to have these commendations, particularly when they are the preface to a suggestion that we might meet rather more frequently. In recommendation 108 the Committee recommends thatThe Lord Chancellor should arrange for the Statute Law Committee to keep the structure and language of the statutes under continuous review.Although it meets rather infrequently that is already one of our obligations. We are also urged toreview the carrying into effect of those of our recommendations that are accepted,"—that is the Committee's recommendations—in particular our recommendation with respect to textual amendment".It is said that we shouldpublish reports (to be laid before Parliament) from time to time, but not less often than every three years.So we have to show something for our annual meeting in future.
Those recommendations are most important. There ought to be a body that has a continuous and ongoing responsibility for duties which may appear 137 to be small and detailed duties but which are immensely important in the context of parliamentary draftsmanship. I hope that, even though it is so difficult to get together, our Committee will meet once again in the course of the year.
These are excellent recommendations, with the emphasis on explanatory memoranda, with a desire for greater clarity and for legislation based on principles rather than on the process of stopping up every conceivable hole—which is the present attitude, particularly in fiscal statutes.
I found the reading of this Report a most interesting and instructive operation. I did not think it would be so, given the terms of reference on a subject which is by its nature rather arid. My right hon. and learned Friend managed to make it a most interesting matter.
For all of these reasons we hope that the Government, and shortly the next Government, will take the Report to their hearts and place the burden of its implementation upon one pair of shoulders high up in the Government. Unless that is done, it will be docketed and simply approved but not activated. If it is activated, perhaps we shall see that the statute book is no longer the disgraceful wastepaper basket that it often is now.
§ 8.38 p.m.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
I listened with great interest to the philosophical discourse of my hon. Friend the Member for Walsall, South (Mr. George). There was a good deal of truth in much of what he said.
I prefer to come down to earth. As one who has been in this House and practised in the law courts for many years, I have always been deeply interested in the subject matter of this debate. On many occasions I have drawn attention to the lack of simplicity and to the involved language used in Acts of Parliament. How difficult it often is for the layman—and sometimes for the lawyer—to spell out the real meaning of an Act. How often has the attempt to do so led to protracted and expensive litigation. In Appendix B the Report refers to some such cases. There are many more.
138 I welcome the Report. It is long overdue. It renders a service in focusing attention on a problem. Everyone is deemed to know the law and is called upon to obey it. But how can we obey a law unless it is couched in language that a layman can understand? All too often there is a slavish adherence to precedent. There is elaboration due to the desire to cover every possible contingency. We all recognise that our draftsmen are skilful. Their work is admirable. However, on many occasions they are faced with conditions which make their task extremely difficult.
Fiscal legislation is a special case. By its nature it demands exceptional treatment. But even here there is scope for greater simplicity and for the use of less complex language. There is great force in the view put forward 'that all Governments—I emphasise that—create initial difficulties in that they attempt to enact too much legislation in too short a time. They desire to bring into effect as quickly as possible the promises they made as a party in their manifestos. When a Government attempt to do too much too quickly they place a heavy task on the draftsmen. Insufficient time may well lead to unsatisfactory drafting and the need for legislation of a corrective nature at a later date.
Political parties often draw up preparatory drafts of the measures which they intend to bring in, if elected. Perhaps if more care were taken in preparing such draft Bills under expert advice, they would form a useful base on which the draftsmen could build when the party succeeded in obtaining office. There are cases where it is necessary to put on the statute book quickly measures to deal with an emergency or a pressing need. But in the main there should be ample time for the consideration of a Bill, enough time between the various stages, and enough time for the formulation and detailed consideration of amendments in Committee and on Report.
I am a strong believer in gradualism. I think that one step should be taken at a time, and that only when that step has been taken, and has accomplished its purpose should we build upon it, step by step. Surely it is better that legislation should be dealt with in a more leisurely fashion so that we can avoid the danger of ill-digested legislation.
139 The Report is right in stressing that in principle the interests of the user should always have priority over those of the legislators, and that a Bill should be regarded primarily as a future Act. Yet how often do the Opposition, of whatever party—I emphasise that—in their desire to delay or defeat a Bill, treat it as a game and engage in antics which make it a parliamentary sport? Let us take a recent instance. I refer to the debate on Report of the Hare Coursing Bill. Hours were spent discussing amendments to define the simplest of words. Indeed, the Chairman of the Committee which drafted this very valuable Report also joined in the sport. I must not criticise the Chair. However, I often feel that the occupant is merciful in his application of the rule on tedious repetition.
Chapter XIV of the Report deals with the need for consolidation. Often it is necessary to refer to a series of Acts to understand the state of the law. Consolidation is of paramount importance. The Report refers to the need for more draftsmen to speed up the process. That is a task which should be undertaken as a matter of urgency. I welcome the assurance of the Solicitor-General that the Government are taking that matter seriously.
There are many matters in the Report that can be touched upon. A great deal of time and labour could be saved if, when an Act is amended, a schedule could contain the complete text of the Act so amended. The date on which various sections of an Act come into force sometimes causes confusion. Should a Bill set out the general principle, leaving details to the schedule? Should there be published a White Paper making clear the effect of the legislation? Should an explanatory memorandum be published for every Bill? Should publicity be given to the meaning of new legislation so that the public can be made aware of the changes that are being made? Those are some of the issues which require careful consideration.
I hope that action will follow the publication of the Report and our discussion tonight. The danger is that the Report and the discussion may be regarded as an academic exercise in considering the preparation of legislation, and 140 that the Government—indeed, every Government—will go their way as they have before and there will be little practical result.
I listened carefully to what the Solicitor-General said. I hope that the Government will take seriously the issues put forward in the Report and that where the proposals can be introduced, they will be introduced without delay. I emphasise that if every Government dealt with legislation in a more mature way, more carefully and more slowly and did not impose an immense amount upon the House, the result would be better and more comprehensible Acts of Parliament.
§ 8.46 p.m.
§ Mr. Peter Rees (Dover and Deal)
Many of us on the Opposition benches will agree with the cogent analysis put forward by the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman). It is pleasant to find such a broad measure of agreement between the two sides of the House, at least on the analysis if not on the conclusion to be drawn from it.
No one who has been concerned either politically or professionally with legislation has not sought for simpler, more succinct and clearer legislation. Lawyers, perhaps unfairly, blame the parliamentary draftsmen. I have no doubt that parliamentary draftsmen complain of Ministers and that Ministers complain either of the Opposition or of the governmental machine.
The idea that legislation can be simplified by a sleight of hand or by small technical adjustments has been exploded by the analysis made by my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) and his admirable Committee. I echo the tributes that have been paid to them. Their Report is workmanlike and painstaking and throws a great deal of light on an impenetrable subject. The Report is a rich quarry to which we shall return over the years when we come to debate this subject. I certainly do not conceive that this will be the last occasion on which we shall complain of the quality of the legislation that emerges from this House.
There are some small technical improvements that could be made, and most of them have been detected and enlarged upon by my right hon. and 141 learned Friend and his colleagues. It would assist if interpretation were standardised, if the interpretation of all phrases and words which are to be interpreted came either at the beginning or at the end and if the words so interpreted appeared in the text in italics so that the fact that they are interpreted would not be overlooked.
I hope that in future we shall avoid referential legislation. I know the temptations in that regard, but it is better to spell out at length the precise passage to which we wish to refer rather than to refer to a mass of statutory provisions that may be contained in another volume of legislation. I should like to see more frequent and more comprehensive consolidation. I suffer in my professional life from the fact that the taxing statutes have been partially consolidated by the Income and Corporation Taxes Act 1970, the administrative measures have been consolidated by the Taxes Management Act 1970, while the measures relating to capital gains tax have not yet been consolidated.
The Solicitor-General said that there has been dramatic improvement in the recruitment to the draftsmen's office. I am delighted, but that will not solve the problem. All the same I commend the possibility that with more draftsmen all taxing statutes, whether they deal with capital gains tax, administration or questions of liability, should be consolidated into one overall measure which would be easy for those concerned to refer to.
I have a practical suggestion about the form of Bills presented to the House. I would like to see the Chair rule on whether Bills are in due form. I hesitate to suggest that the Chair should have the added burden of such an onerous duty, but I believe that in an impartial manner, with the assistance of counsel to Mr. Speaker, it could determine and certify in advance whether the basic rules for constructing legislation had been adhered to. That might eliminate some of the sloppier outpourings of the overworked governmental machine.
I regret the tendency of radical administrations—I do not necessarily have this one in mind, although my example relates to one of their measures—to cast overboard the experience so slowly and laboriously garnered from previous Acts in the same area. I had 142 the doubtful privilege of being a member of the Standing Committee which dealt with the first Finance Bill of this Session. It was largely taken up with the capital transfer tax. I appreciate that the tax was new in concept, but it did borrow a great deal from earlier legislation on estate duty—or could have done so.
However, with a certain arrogance—I hope that it was not genuine but somehow I detected it—the Government chose to brush aside experience gathered over the years and instead to construct an entirely new legislative framework for the tax. The results have not yet been fully felt by the country, but I forecast with confidence that we shall have inflicted on us a morass of amendment and detail over the years to come as long as this measure is allowed to remain on the statute book. I hope that the Solicitor-General will bear that point in mind. We are well aware that the Government have other great radical measures in mind for us, but I hope that at least they will build them to a degree on the experience of earlier measures.
But at the end of the day, we have to look a little deeper even than the Renton Committee was permitted to do. I regret that the Committee was not empowered to consider the legislative process.
§ Mr. Rees
My right hon. and learned Friend is correct—the pre-legislative process. If my right hon. and learned Friend and his Committee had been allowed to consider the formulation of policy on these important matters, to analyse the translation into legislative form and to draw conclusions, I am sure that we would have had an even more helpful and constructive report. It was as idle to ask that distinguished Committee to consider the details of the legislative process without considering the pre-legislative process as to ask them to examine sin without allowing them to cross-examine the Devil.
I agree that we must consider whether it would be possible to have full exposure of legislation before consideration in this House. Of course a Select Committee is considering a wealth tax and another has considered taxation of dividends—two particularly technical matters—but the 143 detail of legislation has rarely if ever been exposed to this kind of scrutiny.
The only venture in this field that I recall lies to the credit of my right hon. Friend the Member for Chipping Barnet (Mr. Maudling) when Chancellor, who set out in a White Paper the form of a Bill which might have put personal taxation on a current year basis. That was a worthwhile experiment and I am sorry that it was not followed through then—possibly due to the unfortunate result of the 1964 election—or since.
§ Mr. Graham Page (Crosby)
May I remind my hon. and learned Friend of the valuable Law Commission Reports which have included draft Bills as annexes and have been helpful in doing so? That might be extended to other legislation as well.
§ Mr. Rees
I am grateful to my right hon. Friend, who has a comprehensive knowledge of these matters. That is a constructive suggestion which I would endorse. Whether it be done through the Law Commission or through some form of Select Committee or merely by publication and the invitation of submissions from the general public, particularly those professional bodies which are interested, I care not. But this obsession with secrecy which all administrations exhibit is one of the root causes of the imperfect quality of the legislation presented to both Houses.
To return to the theme of the Committee, perhaps some hon. Members who are more defeatist than myself may feel that a complex civilisation demands complex legislation. I hope not, but it is to be observed that Governments of both parties have succumbed in recent years to the temptation to a greater volume of legislation and to greater detail. This afternoon, I looked at the bound volumes of the statutes in my chambers. In 1972, there were three volumes with 2,565 pages. I show my utter impartiality by going back to 1972. In 1973, there were three volumes of 2,248 pages. In 1968 there were only two volumes, admittedly, but again 2,532 pages. In 1967 there were two volumes of 2,206 pages. I hope that we shall come to judge our administrations by the volume of their legislation. By that test, most administrations, at least those since 1964, have failed dismally.
144 My right hon. Friend the Member for Yeovil (Mr. Peyton) said that there is a conflict between certainty and clarity. I am not sure whether that is so, but—this is where I commend, if I may do so, one recommendation of the Renton Committee—Governments should be content to legislate in broad principle and should eschew the lengthy and complex definition and the attempt to cover every contingency. That way lies disaster.
Nor do I believe that that objective is attainable. We have had inflicted on us for a decade legislation, particularly fiscal, in which the Government have tried to cover every detail, every avenue of avoidance, and as a result have produced pages and pages—section after section, schedule after schedule. Indeed when I look back and think of misspent nights upstairs in Committee dealing with details of fiscal legislation, I wonder whether at the end of the day the consumer—whether the individual taxpayer or those who advise him—is any the wiser about the detail of the statutes we have enacted.
Furthermore, I believe that Governments must learn to accept the decisions of the courts. There is a consuming arrogance in Government that as soon as the courts have given a decision that conflicts with the Government's preconception about their legislation, they rush through amending legislation immediately which is often retrospective in character.
I hope that I may be permitted to give one small example of a case in which I was involved. A complex measure was introduced into the Finance Bill 1972, lodged obscurely in the twenty-third schedule, which attempted to redefine the rights of preference shareholders—a matter of some importance to those shareholders. The case did not primarily affect the Inland Revenue and, because the legislation was a little obscurely drawn, one group of shareholders felt obliged to go to the courts to test the matter and the Revenue was offered the opportunity to appear in that case but declined to do so. Some hon. Members may know the case to which I refer, the case of Sime Derby, a case heard this summer. The decision arrived at was in a sense contrary to that which found favour with the Revenue. The Revenue refused the opportunity to appear in that case, but almost immediately following the decision 145 a junior Minister of the Crown put out a statement to the effect that owing to the confusion resulting from the judge's decision, the Government proposed to introduce a provision in the next Finance Bill which would be retrospective in effect and which would reverse the judge's decision. That is the kind of arrogance to which I refer—and it is peculiar not only to Socialist Governments but to Governments of all complexions. I believe that the country finds that attitude profoundly distasteful.
The remedy is simple. Governments should be content to lay down broad principles and the objectives they seek to achieve. If questions of detail are resolved in a sense they find unfavourable, they should live philosophically with it, unless real hardship and injustice results. They must not on a whim rush in some new corrective measure that will probably be as obscure and detailed as the measure which they have sought to correct.
Some will say that if Governments choose to legislate for broad principles only no certainty will be achieved. I have tried to make the point that certainty is not always attainable in certain areas of activity. Let me instance taxation matters in which I claim a professional knowledge. That is an area of legislation which has become most complex. For example, the concept of an allowance in respect of relief for wear and tear was introduced in a short provision of the Customs and Inland Revenue Act 1893. Seventy years later the whole area of capital allowances is dealt with in 100 sections of the Capital Allowances Act 1968. Some will object that this is not a fair comparison because questions of balancing allowances and charges not dealt with in 1893 have been introduced. The point I wish to emphasise is that there is no greater certainty now with the present volume of legislation on tax issues than there was in 1893. The courts and practitioners had no more difficulty in those days in determining taxpayers' rights than they do at present.
At the end of the day, as I have said, there are some underlying general questions which we must resolve, which to a degree were touched on by the hon. Member for Walsall, South (Mr. George). I agree to a certain extent with his analysis, although I dissent violently from some of his conclusions.
146 There is at present an imbalance in our public or constitutional life. Parliament, manipulated to a great degree by the executive, has arrogated to itself the right to legislate for every aspect of our national life and in the process to turn our judges into mere lexicographers. There is no longer any balance between the executive, the legislature and the judiciary.
Parenthetically, I find the criticism levelled at the Bench by the hon. Member for Walsall, South rather distasteful, and I found his interpretation of our institutions in class terms, indeed, in Marxist terms, rather unattractive. I think he quite misunderstood the rôle of the Bench, which should not be a subjective rôle but should be to attempt to do justice with scrupulous impartiality.
I remind the hon. Gentleman and, indeed, the Solicitor-General, of an observation made by a very distinguished member of the Upper House and a member of the Judicial Committee, Lord Thankerton. It will not be found in any law report. It was told to me by an advocate who took part in the particular case. Lord Thankerton made it to the then Solicitor-General, the noble Lord, Lord Stow Hill—for whose forensic powers and, indeed, for his political powers I had and still have respect. Lord Stow Hill on that occasion was pressing a rather literal construction of a difficult passage of a taxing statute on that Judicial Committee. Lord Thankerton said to him,Mr. Solicitor, you and your clients"—by which he meant the Government—should understand that their lordships conceive it their function in this House to do justice even in a tax case.That is something, I regret to state, that cannot always be said of our deliberations in this House.
The most constructive conclusion, therefore, that might emerge from this debate is that we should henceforth exercise a little moderation and self-discipline in our legislative proceedings, that we should not press for or accept detailed and complicated measures, and that we should legislate in terms of broad principle and leave the detail for consideration by the judiciary—detail which through pressure of time and party conflict we are probably ill-adapted to resolve.
147 If we accept this self-discipline and if we accept the practical measures which my right hon. and learned Friend the Member for Huntingdonshire and his distinguished colleagues have put before us, there is just the faint chance that future generations may enjoy from this House rather better legislation than has come out of it in previous years.
§ 9.8 p.m.
§ Mr. Ian Percival (Southport)
I start by echoing the one point upon which everyone is agreed: Yes, we should all be very grateful to all the members of the Committee whose Report we are considering—and we should be very proud of the part played by our colleague, the right hon. and learned Member for Huntingdonshire (Sir D. Renton), as its chairman.
All that is very right and proper, so long as we all, starting with the executive, also appreciate that all of that effort will be totally wasted unless the executive steel themselves to the decision to which one executive after another have failed to steel themselves—namely, that action must be taken; that all the action that is needed can be taken by an executive with a parliamentary majority; and that nothing will happen unless and until some executive does take the necessary action. It is at that point that despair begins to creep in.
In March my right hon. and learned Friend wrote a letter to the Prime Minister enclosing the report. In April he had what seems to have been a formal acknowledgment. In September he received another letter from the Prime Minister. This correspondence has now been made public. It chills my heart. The first page of the Prime Minister's letter shows the greatest complacency about a recommendation which could not be made within the terms of the Committee's Report because it did not fall within its terms of reference, but which the Committee's chairman, in his letter to the Prime Minister, made clear was of overriding importance. I refer to the question of ministerial responsibility for the law.
I despair, too, because the Solicitor-General galloped through his speech without really saying much beyond making a few comments about this, that or the 148 other recommendation. He offered little more than a hope of some action on a few recommendations. And I despair, because of the history of the subject.
Let me first quote from a debate in '56, when the Member who was speaking said he supposed we should have to live with existing legislation—it was too much to hope to put all that right—and went on:But when we come to our current legislation, we must acknowledge that the magnitude of the evil requires that it should be grappled with at once.All the speakers in that debate agreed with that proposition, just as all the speakers in this debate will agree with the proposition that there must be immediate action—but there has still been none. I should have given the House the reference to the quotation. It is in the Parliamentary Debates of 1856, Vol. 140, col. 622.
Let us hope that this time the Government will determine to take action. If they do, they will have a large measure of support from the Opposition, because there is a widespread and strong feeling that the executive must take action and the House must support it.
There are one or two recommendations on which I should like to commend in a moment, but may I first stress the point which has been made so many times by my right hon. and learned Friend the Member for Huntingdonshire and which was made tonight by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke). I do not believe that any significant progress could be made, even if all the recommendations were to be adopted, if the volume of legislation remained as it is. The hon. Member for Walsall, South (Mr. George), who was one of my opponents in Southport a few years ago, advocated more and more legislation. He said that the less legislation there was the more the position of the already strong was strengthened. How wrong can anyone be? The more legislation we pass the more necessary it is for people to turn to professional advisers to gain any idea of what the law is—and so the more the position of the already strong is strengthened. No, we cannot hope to make any improvement in the quality of legislation unless and until we reduce its quantity.
149 But provided that we do do that, the Committee's recommendations offer much scope and hope for improvement. May I mention some which I find particularly attractive. The first is Recommendation (19):A statute should be arranged to suit the convenience of its open users".and Recommendation (39) says:The needs of the eventual user of the statutes must be given priority over those of the legislator".Those are especially attractive propositions because they are so obviously right and because it would do the House so much good in the country if those for whom we legislate were to think just for once that we were putting their convenience first. We owe it to them. If we had the sense to do that, it would meet with a very good response from those concerned.
The recommendation that there should be statements of purpose and of principle is well worthy of close consideration. I hope that it will receive consideration and that appropriate steps will be taken.
As for the proposal for the recruiting of parliamentary draftsmen, everybody agrees about it, but everybody has agreed about it for goodness knows how many years. I only hope that something will now be done.
I agree very much with the recommendation that whenever possible textual amendments should be used. I also agree with the reasoning of the Committee in seeking to accelerate consolidation, both because it is so much more convenient to the practitioner and the public when the law is consolidated in one statute, and because it is so much easier to adopt the textual amendment practice when one has a consolidated statute upon which to operate.
I now turn to one other aspect of the matter which I think is the most important of all. As appears from the Report, I had the privilege of giving evidence to the Committee, and there are some kindly references in it to that evidence. What is not said is that the part of my evidence which I considered the most important of all, and the one recommendation which I thought more important than all the rest put together, could not be countered or referred to because it was outside the terms of 150 reference. That was the view, which I hold very deeply indeed, that we shall not make any real progress until there is more closely defined ministerial responsibility for the quality of the law—not the political content but its quality.
This was what the debate in 1856 was all about. A Member called Napier was moving a motion, saying that a Minister should be appointed with personal and specific responsibility for the quality of legislation, and everybody, including the Government, agreed with him. The only question was whether the Minister should be in the Cabinet. In 1857, there was another debate in which another lawyer, the Member for Midhurst, said that he was not going to speak for long, because he was afraid that the great cause of law reform might be talked to death. This is a real danger. The House has talked about this subject for so long that it will talk it to death unless it does something about it.
The history of the matter from then on is set out in a report of the Committee of the Society of Conservative Lawyers published in 1971, over which I had the honour of presiding. My hon. Friend the Member for Burton (Mr. Lawrence) was the secretary and my hon. and learned Friend the Member for Wimbledon (Sir M. Havers) was also a member. We drew attention to some of the recommendations made during the course of the last 100 years and more on the subject. One of them was a recommendation of Lord Haldane in 1918. He said that a new Department must be created and that some of the administrative burden of the Lord Chancellor could be taken off his back and shouldered by this new Department, leaving the Lord Chancellor free to "watch over and master legislation." He was to be the link man between the parliamentary draftsmen and the Department. He was of course to tell the draftsmen if he thought they were doing their job badly.
But that was only half the story. The Lord Chancellor was also to protect them against the Departments—which seem often to make wholly unreasonable demands upon them. Although the parliamentary draftsmen must, and I have no doubt would, accept their share of 151 the criticism, all too often it would seem that the instructions given to them leave them so little time to do something that it is a marvel that they get anything out—and on other occasions, even worse than than, the instructions given to them are so vague as to make it really impossible for them to do the job that they would like to do.
That was Lord Haldane's view, that the Lord Chanellor, being freed of administrative duties, would be able to watch and be master over the whole quality of legislation.
But it seems clear that, if we were now to implement that principle adopted so frequently by the House during all these years of having specific ministerial responsibility for the quality of the law, additional ministerial manpower would be required. I do not think that the Lord Chancellor ought not to be invited to take on any more burdens. In 1971 Lord Dilhorne expressed the view that the burdens on the Lord Chancellor were already as much as any one man could bear. Far from being relieved of any duties, as Lord Haldane had suggested, the Lord Chancellor has been given greatly increased duties in administering the new organisation of the courts following the Beeching recommendations.
I take serious note, of course, of what the Committee says in this connection and of the correspondence with the Prime Minister, and I should like to consider that further, but, with respect, it seems to me implicit in the Committee's recommendation, which would seek to bring in the Statute Law Committee, so to speak, to devil for the Lord Chancellor, that the Lord Chancellor would not be expected to be personally responsible to the extent that he would in fact himself look at all our statutes and express a personal view.
§ Sir David Renton
It may help if I try to clarify this matter. What we had in mind was that there should be a member of the Cabinet with overall responsibility for the form, structure and drafting of statutes—to use my hon. and learned Friend's phrase, for the quality of legislation. For reasons which I cannot elaborate in an intervention, we felt that the Lord Chancellor would be the most suitable member of the Cabinet to do that work. I 152 say "We", but I should add that that was the view of all but two members of our Committee. There were two who did not agree with the rest of us.
Obviously, whenever any Minister is given any responsibility, he has the backing of his Department to help him. Sometimes, he has the backing of an advisory committee of people outside the Department, and so on. We felt that the Lord Chancellor, with the backing of the Statute Law Committee, could best carry this responsibility as a member of the Cabinet.
§ Mr. Percival
I am much obliged to my right hon. and learned Friend, and I hope that he will in this debate take the opportunity to enlarge on that and some other aspects of the recommendations which we have been discussing. However, my view is that if this new ministerial responsibility is to be effective it must be implemented in a way which imposes a direct personal obligation on the Minister responsible. It may for that reason mean that he cannot be a Cabinet Minister, but in my view it is essential that it be a responsibility carried out in a very personal way by someone who has to come to the Dispatch Box and be questioned about any piece of legislation the quality of which is less than one would desire.
It was for that reason that the committee of which I spoke earlier came to the conclusion that the Lord Chancellor already had so much to do that he could not take on that duty. We considered whether it might be carried out by the Law Officers, for it seemed to us to be very much in the spirit of the general duty of the Law Officers, going beyond their duties as members of the Government, to advise the House on what the House is doing.
It seems very much in line with that duty that a Law Officer should say to the Government, "No, you should not do that. The quality of this is really too bad". It is also in line with the duty which the Law Officers accept as being part of their general functions, of looking after the liberty of the subject, since there is nothing more oppressive to the liberty of the subject than either too much legislation or legislation of poor quality. We felt, therefore, that it was very much in accord with the spirit in 153 which we understand the Law Officers to be not just Ministers of the Crown but servants of the House and of the people as a whole, that they should carry this responsibility.
However, we thought that with just two English Law Officers, it would be impossible to burden them with any more work, for we thought it was remarkable how they managed to do all they have to do at present. Therefore, if our suggestion were adopted it would seem to necessitate an increase in manpower, and this we accepted and advocated. Once we used to have six Law Officers; they included the Queen's Advocate. One way would be to revive or fill that post and allocate these duties to that officer. Alternatively, the Attorney-General could use the Queen's Advocate for more general legal duties and take on these other obligations himself. There are also other suggestions in the Report about how this problem could be tackled.
The fundamental point remains that the performance of these duties should be allocated to a senior Minister who should have a personal and direct responsibility to this House for seeing that the quality of what we turn out is improved. This was important in 1856. It was even more important in 1956. I have been here since 1959 and I know that many hon. Members have been stressing it continuosly since then.
It could be so exciting. There are so many things we ought to be trying, such as having small committees of professional men looking at the drafts of legislation and commenting on them not on the policy content but simply on the meaning of the words used. This could be something like the German pre-presentation and vetting by experts. Most legislatures have the same problem. We should try some of the things they do, and above all we must make it somebody's job to improve the quality of legislation and stand at that Box to answer for any failure to do so. Only then will we get someone whose job it is to try some of these experiments. It is now even more important than ever, because if we are to take advantage of the work of this Committee—and we shall bear a very heavy responsibility if we do not—the Government must now appoint a Minister with direct and personal responsibility for 154 doing what everything in this Report is directed towards—improving at long last the quality of the legislation we pass—and for giving effect to the recommendations of the Committee.
§ 9.28 p.m.
§ Mr. Robin Maxwell-Hyslop (Tiverton)
I congratulate my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) on this excellent Report. It would have been so easy to produce a report which was unreadable on legislation which is unintelligible. The highest compliment I can pay to the Report is to say that on the many nights recently when we have been sitting into the early hours, the Report has proved sufficiently arresting to command my attention for up to half an hour before I went to sleep.
The Report might be named the Renton Report. It is not, as is printed on the cover, a Report on the preparation of legislation. That is something very much wider. If my hon. and learned Friend the Member for Dover and Deal (Mr. Rees) had conducted the researches in his chambers at even greater length, he would have found that the volume of delegated legislation passed in the years he mentioned was even greater than the volume of statute law. This is sometimes overlooked.
If one moves on from the cover to the terms of reference inside, one finds something which is much more restricted, which covers less than half the legislation passed each year. It saysI hereby appoint"—and then it gives the list of members of the Committee—to be a Committee on the Preparation of Legislation with the following terms of reference: 'With a view to achieving greater simplicity and clarity in statute law,"—and'to review the form in which public bills are drafted'".My first observation therefore is that the Report covers less than half the legislation inflicted upon this country each year. Moreover, it covers that less than half which at least Parliament has power to amend. Bills which are defective when introduced can at least be amended by this House in Committee or on Report, but more than half of the legislation inflicted by this House is delegated legislation, and Parliament has no power to amend a single word of that.
155 Some might think there was an even more pressing need to inquire into the preparation of legislation which is beyond the power of this House to amend. I say that in the belief that I am the only Member of this House in the last half century to have attempted twice to introduce Bills to give the House of Commons power under certain restricted circumstances to amend delegated legislation. Alas, neither of these Bills reached the statute book.
It is dangerous to have legislation which cannot be debated. I mention that, and with a caveat. Those who are not inclined to read reports but to read only the summary of recommendations and conclusions at the end can fall into traps. I recognise the need for a last-minute corrective process, and if we read Recommendation (106) merely in the summary of recommendations and conclusions, few will dissent from it. However, the paragraphs from which it emanates propose that this remedy should be applied without debate.The proposed amendments would be printed on the Order Paper with the requisite certificate, and Parliament would be given the opportunity to accept or reject them, taken together and not individually, without debate.What is the purpose of giving Parliament power to assent to or negative a resolution without giving power to those who are opposed to that assent to state the reason for their opposition?
It might be said that this recommendation was intended to deal with very urgent matters and that it was not desired to consume the time of the House on such matters. There are precedents for dealing with this. If any one Member of this House objects to the proposition contained in a motion to introduce a Ten-Minute Rule Bill, he may state to the House the reasons for opposing that motion. If there are stronger reasons than are apparent to me why no debate should be allowed pursuant to Recommendation No. (106), I hope at least that we shall take the analogy of the Ten-Minute Rule Bill and allow one Member of the House to express, on behalf of himself and others who might agree with him, his reason for thinking that the sponsor's motion should not be accepted by the House, otherwise the consent of the 156 House is without debate. I think it could be said that without exception such motions would be carried. That illustrates also the importance of reading the Report itself rather than just the summary of conclusions at the end.
Reading this Report in conjunction with the Kilbrandon Report, I feel that it appears to confine its considerations of the territorial applicability of legislation to questions differentiating between legislation for England, or for the United Kingdom, or for Scotland, or possibly for the United Kingdom and Ireland.
I mention en passant that there is another class of legislation to which attention is drawn in Part XI of the Kilbrandon Report on the Constitution. That is legislation which applies to the islands which are not part of the United Kingdom. I refer to the Isle of Man and the Channel Islands, which, though not part of the United Kingdom, are legislated for by this Parliament often without intent, without realising that it has happened, and in a manner which is in breach of the 1957 undertaking given by the Government of the day. I make this point, again not in criticism of the Renton Report but to draw to the attention of those who may seek to implement it that certain matters have not been stated quite as fully as unlimited time would have permitted.
I think that Recommendation No. (57) is a most admirable one—The practice should be developed of making available for Committee stage debates in both Houses notes on clauses and similar additional explanatory material.This will, I think, ring a very loud bell in the ears of my right hon. Friend the Member for Crosby (Mr. Page), because this very matter came up within the last few days on the Report stage of the Community Land Bill.
I should be most grateful if my right hon. and learned Friend the Member for Huntingdonshire would tell us when he speaks—I am sure that we are all looking forward to hearing him—whether his Committee meant to confine to the Committee stage the recommendation that the explanatory memorandum should be provided, and whether the Committee had reasons for its not being available to the House as a whole on Report.
§ Sir David Renton
I think that it was felt that, if these memoranda were provided for the Committee stage, they would serve a useful purpose, but that, by the time the Committee stage was passed, much of the material in the memoranda would have been overtaken by amendments accepted or to be accepted by the Government, that they would have to be completely rewritten for the Report stage, and that the effort would not be worth while. It would be a very great effort.
§ Mr. Maxwell-Hyslop
I am most grateful to my right hon. and learned Friend, but I suspect that if his Committee had sat after the passage of the Community Land Bill it might have come to a different conclusion. It would have been helpful if explanatory memoranda—rewritten, yes, because the amendments were so substantial—had been available to the House for the Report stage of that Bill.
That is merely one example. If the amendments on Report were not substantial the work involved in preparing explanatory memoranda just for the Government amendments would not be great. But if the Government amendments for Report were considerable, in equal measure would there be a need for explanatory memoranda on them.
Recommendation No. (50) states:Where powers are conferred to amend Acts by Order in Council in order to facilitate consolidation, the exercise of the powers should be made subject to affirmative resolution, and no such resolution should be taken in the Commons until the relevant order had been reported by the Joint Committe on Statutory Instruments.Maybe, but it does not lie within the power of the Joint Committee on Statutory Instruments to comment on merit. Its function is to comment on whether the proposals are ultra vires or intra vires.
I mention that because in the past two weeks I was present at a meeting where a Minister of the Crown, addressing fishermen in Devon on the new survey regulations, stated that they had been unanimously approved by an all-party Committee of the House. When I challenged him, he admitted that it was the Statutory Instruments Committee, and that it had no power to comment on the merit of the regulations.
158 I am not happy that a body outside this House, however eminent, should have power to legislate, even for consolidation, through such a procedure that the House has no power of amendment. I return again to my plea that we need to reintroduce a procedure, even if it should be tightly bounded, whereby the House can amend statutory instruments. Otherwise, if we increase the scope of delegated legislation we increase still further the danger of unforeseen consequences and of slipshod, incompetent or unskilled drafting, simply because it does not have ahead of it the test of amendment to sharpen the wits of the draftsmen.
I know that it is always denied—it was denied before the Joint Committee on Delegated Legislation—but I have at the back of my mind the conviction that a draftsman will be much more careful if he knows that that which he drafts must be justified line by line, clause by clause, before a Standing Committee, and perhaps amended by the House, both in Committee and on Report, than if he knows that the Minister can come to the Box with crocodile tears streaming down his cheeks and say "It is not within my power to amend. The statutory instrument must be accepted or rejected in toto by the House. If you throw out the bath water, you throw out the baby with it." In 15 years I have heard that plea by Ministers of both parties for shoddily drafted statutory instruments.
If we give to Ministers or outside bodies, however commendable in themselves, more power to circumvent the normal processes of legislation, which include the gauntlet of amendment, we do so at the risk of all the perils identified by the Renton Committee for legislation which is the minority of legislation which passes through this House and reaches statute form eventually.
We do not at present—and the Renton Committee was right to say that we should not in future—give judicial effect to side notes in Bills or to statements made by Ministers at the Dispatch Box during our proceedings which purport to inform Members and presumably the public at large as to what a Bill means. Often we have had such statements from Ministers. As the courts rightly observe, it is for them to interpret the law, not 159 Ministers. I am glad that my right hon. and learned Friend's Committee did not fall into that enticing trap of recommending that explanatory statements made by Ministers in the House should be subject to judicial notice in interpreting legislation. That would be dangerous, all the more so because it is so alluring since the hypothesis could be made that, as the House legislated on the basis of the Minister's assurance, surely that is what the judges should enforce. The judges would then need to know what was in the Minister's mind at the time and what advice the Minister had been given about disaffection in his own majority.
I have endeavoured to confine myself to what is in the Report. When, many years ahead I hope, my right hon. and learned Friend retires from this House, this Report will be one of his lasting memorials. It will be referred to in places of learning, in universities as well as in this House. I hope that it will not be the sort of memorial that becomes completely obscured with ivy—the fate of many memorials. Rather I hope that it will act as a fertiliser.
I echo the words of my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) who said that we were being swamped with legislation. Several Labour Members who should have known better referred to this House as a legislature. That is merely one of its functions. It has become the overwhelming and all-consuming function. But it is not what it is supposed to be. Among other things it is supposed to be a deliberative assembly. We are having little enough time to deliberate.
This debate, in half a parliamentary day, may, whatever we would desire, be the last occasion when this valuable Report will be subject to proper debate and scrutiny. It may be that a Government programme of legislation will once more descend upon us, a programme of such intensity, complexity and duration that with the best will in the world most of the recommendations contained in this Report will pass into history, not because anyone wishes them ill but because no majority wishes them sufficiently well to see them carried out. My right hon. and learned Friend and his Committee deserve a better fate than that.
§ 9.48 p.m.
§ Mr, J. M. Craigen (Glasgow, Mary-hill)
I could not agree more with the hon. Member for Tiverton (Mr. Maxwell-Hyslop) in that this is an extremely important subject. I share his pessimism that little may emerge from this evening's deliberations. It seemed earlier that the debate was made up largely of lawyers speaking to lawyers. As a layman I believe it important to emphasise that this subject deals with the tools we use to perform one of our important jobs. Much has been said about the volume of legislation passing through this House and the other place. The fact is that modern life demands more and more legislation. Parliaments have done no more and no less than respond to the demands of the people who elect Members of Parliament.
One of the problems is that Members of Parliament increasingly face the difficulties of operating in a situation which has grown up, probably unnoticed, over a long period, but one which now demands all their skills as territorial representatives and all their energies and expertise as professionals on a wide variety of subjects. Members of Parliament will appreciate what I am talking about. I refer to the volume of legislation on a wide variety of subjects, which demands close study if a proper job is to be done. As a result of the limitations on time for debate and on the time of Members of Parliament it is becoming increasingly difficult to do justice to much of this legislation.
This Report is thorough enough, though it deals with legislation in the existing framework. The hon. Member for Tiverton mentioned devolution when he referred to the Kilbrandon Report. There is uncertainty about the future framework in which we shall deal with the laws of Scotland, England, Wales and the United Kingdom. The Lord Advocate may well comment on some of the points made in paragraphs 12.2, 12.3, 12.4, and 12.5 of the Renton Report. Although some functions may be transferred to a Scottish Assembly, many items will still require special attention because of the differences between the Scottish and English legal systems. I noted with some concern the point made in the Report about legislation in British Departments in the paragraphs to which I referred.
161 It is surprising that there are no representatives present from the Scottish National Party as I should have thought that they would be taking a far greater interest in this matter.
If there is uncertainty about the future legislative processes following the devolution arrangements, there is also uncertainty about the future framework of our parliamentary processes. Many Bills have been well cut and dried before reaching the Vote Office as a result of the considerable amount of discussion between Whitehall and the interested groups concerned, whether it be the TUC, the CBI or the various pressure groups now knocking at the doors of Parliament asking for legislation.
One of the major problems involved in the preparation of legislation is the speed with which events move in our society. Perhaps this means that Parliament should be more concerned with the basic principles of the Bill rather than with the detailed intricacies. Circumstances change so quickly today that we can get so caught up in the trivia that we lose sight of the main objectives of a piece of legislation.
I readily confess that this leaves us with the basic problem of who interprets all these intricacies once Parliament has decided the objectives. It might be the lawyers, it might be the civil servants. An aggrieved constituent might still feel it necessary to come back to Parliament to point out an anomaly which has arisen because of the interpretation of the Civil Service or the legal profession.
Part of the problem is that we are in a period of vacuum. We are not clear how the problems concerning the institutional side of our parliamentary affairs will be resolved.
§ The Lord Advocate (Mr. Ronald King Murray)
My hon. Friend mentioned certain paragraphs in the Report dealing with some of the problems of Anglo-Scottish legislation—that is, legislation that applies both to Scotland and England—and he mentioned devolution in that connection. In my judgment, devolution may contribute to the solution of some of the problems dealt with by the Renton Committee, but it would be wrong to suggest that it may be the complete answer to the difficult problems raised by my hon. Friend.
§ Mr. Craigen
I was not suggesting that it would be a complete answer. In mentioning those paragraphs in the Renton Committee's Report I was concerned that even in dealing with legislation which applied to Great Britain, problems of draftsmanship and the availability of professional assistance sometimes arose which were not always helpful to the Scottish dimension. We may not, I think, be able to do justice to this thorough Report because of the uncertainties of devolution but more particularly because of the uncertainties over the operation of the parliamentary system itself.
§ 9.58 p.m.
§ Mr. Tim Rathbone (Lewes)
I rise with certain trepidation as one of the few hon. Members present who is neither tested by time in Parliament nor a learned or unlearned lawyer. I join my hon. and right hon. Friends in congratulating my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) and his Committee on their Report, which is excellent both in content and in form. Form is an important aspect. In debating the process of law making, form is crucial, because it is through correct form that law will become effective in its application.
I was a little concerned at the outset about what my unlearned ear interpreted as a somewhat superficial interjection by the Solicitor-General. I do not profess to be competent to judge the reference made by my right hon. Friend the Member for Yeovil (Mr. Peyton) to the need for scrubbers and scrapers. I shall dwell on one theme only which runs through the whole Report, that is, the theme of time. So many of the recommendations of the Report are drawn from the fact that time is of the essence, and this is one element which is inelastic.
§ It being Ten o'clock, the debate stood adjourned.
Ordered,That the Motion relating to the Preparation of Legislation may be proceeded with at this day's sitting, though opposed, until half-past Eleven o'clock.—[Mr. Thomas Cox.]
§ Question again proposed.
§ Mr. Rathbone
As I was saying, running throughout the Report seems to be the essential quality of time, which is inelastic in all our lives. Time is of the 163 essence in the grey areas where drafting instruments are given and where directions are established for turning policy into the draft Bill. The Report refers to the fact that time often inhibits the correct or best drafting of these Bills. Time is obviously of the essence in working out and then reviewing the considerable detail in Bills and the Report makes suggestions for relieving the law of some of these details.
I believe that the First Parliamentary Counsel, in his evidence, struck it right. Time is of the essence in ensuring the best understanding of the law in applying to it the correct syntax, sentencing, paragraphing, titling and other details. Time is of the essence in the provision of sufficient and coherent explanatory detail which I, as a layman, more than welcome.
Lastly, I believe that time is of the essence to ensure simplicity and clarity in drafting for the best consideration in this House, which it is presumably in the interests of the Government to have because it means that that discussion and consideration can be got through more quickly, and also to ensure simplicity and clarity for my hon. and learned Friends and others in applying the law.
The Report has a myriad technical recommendations on which I do not pretend to be competent to touch. But two particularly caught my eye, and I want to make two or three comments which have not yet been made in the debate. I believe that the most excellent and most crucial recommendation is on the need to recruit sufficient suitable parliamentary draftsmen. Not only will this lead to better and speedier drafting for the Government but, as the Report mentions, it will lead to more generous drafting support for Private Members' Bills, an essential component of this House.
I believe that the most intriguing recommendation is the extension of computerisation, the speed in printing of draft Bills and the speed in printing, presumably, amendments to those Bills, which are so often late and available only at the last minute for our consideration before we debate them.
Surely crucial to the proper effect of all these recommendations is that this and future Governments have to be aware of 164 the need to lessen the legislative load. The Report points out that there are about 50 days in the Session for Government Bills and that in this Session alone we have had 79 Bills. I am not making a party political point but it is crucially important to the consideration of legislation in this Parliament that such a situation should not continue.
The Prime Minister himself touched on this point when, in a letter, he told my right hon. and learned Friend the Member for Huntingdonshire:…I would not wish in any way to weaken or appear to weaken the responsibility of parliamentary counsel to departmental ministers for the drafting of a public Bill and the minister's own responsibility to Parliament for the legislation which he introduces.There is in turn a responsibility of Parliament to the country, the ultimate user of the legislation, which we have to remember.
With temerity, I would offer one suggestion which, if the Committee's terms of reference had been wider, it might have considered. That is, how all this fits in with the question of a Bill of Rights. Whether that is a Magna Carta or a Declaration of Rights or, as in the European Community, a Convention for the Protection of Human Rights and Fundamental Freedoms, I am not particularly qualified to comment. With a Bill of Rights in existence, the quality of legislation and perhaps the delegated legislation as well, could be tested against a touchstone. Perhaps it might also lead to statements of general principle and facilitate the movement in that direction as recommended by the Committee, without jeopardising the rights of individuals or increasing the difficulties of legal interpretation.
Wherever we get to in improving our preparation, interpretation and application of legislation, we shall get further more quickly if we heed this important, vitally positive anud constructive Report.
§ 10.7 p.m.
§ Mr. Patrick Mayhew (Royal Tunbridge Wells)
From the days of Justinian, if not from the days of Caius, and in every legal system, ignorance of the law has excused no one. But such has been the failure of modern Parliaments to enact clear law that today everyone might be excused for being ignorant of the law.
165 It is customary in these circumstances, when we ruefully recognise this fact, to turn first upon the draftsmen when we are confronted with the incomprehensible or even, sometimes the unreadable. But the principal fault in recent times has lain not with the draftsmen but with Ministers of both parties who have insisted upon overloading the legislative system so that it can no longer properly perform its function.
The primary responsibility lies in the fact that no Minister is personally responsible for the quality of legislation. If there were such a Minister, the statute book would look very different. To begin with, it would look much slimmer. The primary cause of the statutory monstrosities that Parliament from time to time spawns—particularly Finance Acts—is Ministers' determination to plug on with legislation even though the parliamentary time table will not permit it to be properly considered. In consequence, it is not even properly prepared.
This has meant that diligent and experienced solicitors have to confess to their clients that they do not know what the law is, that they have not had time to catch up with changes. I am speaking not of arcane and exotic mysteries but of the ordinary everyday matters affecting the farm, the family and firm that form the substance of inquiries by solicitors' clients. If there were a Minister responsible for the preparation of statutes, they would be far easier to understand.
My hon. Friend the Member for Lewes (Mr. Rathbone) said that part of the trouble lay in the matter of timing. Ministers in charge of Departments with a heavy—as they see it—departmental programme of legislation before them, do not have the time to give their minds to the quality of the legislation that they are bringing forward. If there were a Minister with the time and the specific responsibility to do just that, we would have many more examples of legislation that followed the shining example of the Occupiers' Liability Act 1957, which is a model of clarity and ordinary language. Many Members will recall the splendid example that appears in Section 2(3) of that Act which, seeking to define "common duty of care" says:…so that (for example) in proper cases an occupier must be prepared for children to be less careful than adults….166 What could be more refreshingly simple and clear than that? It is no coincidence that there have been only two cases taken to appeal on the interpretation of that Act.
At present in Standing Committee it is customary for a Minister, when confronted with complaints about the complexity of legislation, to blame the lawyers and to say, "You know what lawyers are. I am simply the Minister responsible for the Nationalisation of Bookmakers Bill." But a responsible Minister would have to acknowledge that they were his lawyers and that the thicket represented by legislation was his thicket. He would have to justify its, and his, continued existence. If I may adopt a parenthesis, which is the device used by many draftsmen, I wish to observe that lawyers comprise one-ninth of the total of hon. Members of this House, yet at this moment they comprise 75 per cent. of those present in the Chamber. Those who are not lawyers seem to be missing an opportunity tonight.
With simpler and more comprehensible legislation, the saving in time, in solicitors' fees, in counsel's fees for consultation, in the costs incurred in obtaining the interpretation of the judges, would be enormous. But these are the benefits that would accrue only after legislation has been enacted. If the current chronic legislative diarrhoea can be staunched, a more important benefit will be gained here in this House. We would understand the full legislative consequences of what we are enacting. At present that is not the case, even if we are members of a Standing Committee charged with the detailed consideration of a Bill, because there is just not enough time to get on top of the task.
I attach the highest importance to the Committee's recommendation in Chapter 18.34 calling for greater time to be allowed to elapse between the successive stages of the passage of a Bill through tie House. The Report stage of a Bill is one at which the whole House is supposed to receive, and to be able to consider properly, the report of what is merely its Committee. At present, the Report stage is merely an opportunity of which only the weary contestants who were members of the Committee are left to take advantage—and then only to rehearse their former arguments.
167 There is not enough time between Committee and Report for those coming fresh to the argument to master anything approaching the detail. This does not occur wholly by accident. The hon. Member for Walsall, South (Mr. George) spoke rightly of the reservoir of experience and talent in this House, but I believe that Ministers fear that if it were tapped the carefully balanced compromises arrived at outside the House and the nicely-calculated stages of their timetable would be swept away. The conflict between a Government's purpose and the proper functioning of this Chamber is a long-lasting one, and at present it seems that it is nearly always resolved in favour of the Government. The recommendations in Chapter 18 of the Report would redress that.
Less legislation; a Minister responsible for its preparation; greater intervals between its stages in Parliament; and simplicity and clarity of language—these are beacons which shine forth from this Report, to which I should like to add my respectful tribute to those which have already been heaped upon it. These beacons have been shining for five months now, since the Report was published. Because they call for a major change in governmental practice we are entitled to expect an expression of governmental reaction and intention. All that we have had is a polite noise from the Solicitor-General. We are about to have another polite noise—no doubt the same one—from the Lord Advocate. But where is the Lord President, who is responsible for bringing legislation forward in this House? In so far as the Prime Minister is the Minister responsible for legislation and for the quality of the legislation, where is the Prime Minister to come in? Why do we have only a Law Officer to open and conclude this debate, pleased though we always are to see both of them?
I hope that the Government will realise that this rather offhand reception of a Report which is both a beacon and a landmark simply will not do, and that what is now required is evidence that the Government are prepared to take action on the recommendations of that Report.
§ The Solicitor-General
Before the hon. Gentleman resumes his seat, may I ask him whether he is complaining that the 168 Government have not made up their minds in advance of the debate?
§ Mr. Mayhew
Yes. I am complaining that the Government have not come forward with an assurance that they propose to take action upon many of the recommendations of the report which are self-evident in their desirability and rightness.
§ 10.17 p.m.
§ Sir David Renton (Huntingdonshire)
I rise only briefly to thank the House for the welcome that it has given to this Report. Although in accordance with custom the Report bears the name of the Committee's chairman, I assure the House that this was a genuine team effort on the part of a very good team. Perhaps I can betray the secret that each member of the Committee, reading the Report, would be able to identify his own thoughts and phrases which he or she contributed.
Except for two fairly minor matters, I am glad to say that we were unanimous in our conclusions and recommendations, and that perhaps strengthens the Report. It is a relief to me and, I am sure, to the rest of the Committee that our Report has been so widely welcomed in the House, because some of our recommendations mean, as I think hon. Members accept that they mean, that the House would have to abandon some of its cherished habitual practices.
I should like to thank the Solicitor-General for his welcome. However rapidly it was given, I am sure that it was sincere. It offered the hope that the Government would give our proposals a fair wind if the House did so. The House has given the proposals a fair wind, so now it is up to the Government. My right hon. Friend the Member for Yeovil (Mr. Peyton), speaking as Shadow Leader of the House, not only welcomed the more important of our proposals but did so in a superbly thoughtful speech.
I realise that the Government will wish to consider our proposals and have time to consider them in the light of the discussion tonight. However, I should like to ask the Solicitor-General, or whoever is replying to the debate, when we are likely to be told the Government's decisions. Will he bear in mind that some slight changes in Standing Orders will have to be submitted to and approved by the House? The Solicitor-General mentioned 169 one which would be required under paragraph 10.13, in which we make a rather important recommendation—perhaps the most important. Meanwhile, will the Solicitor-General say to whom Questions should be addressed in the House about the form and drafting of Bills in general and about the implementation of our proposals? In the light of the Prime Minister's reply to my letter on the matters outside our terms of reference, presumably it will be the Prime Minister himself who will have the responsibility of answering, but the House would like to know. The position should be made clear.
I am sure that the members of my Committee would wish me to thank First Parliamentary Counsel, Sir Anthony Stainton, for the help which he gave us. He was wonderfully forthcoming in telling us exactly how his office works and in all the information he gave. Needless to say, he had to be very clear about the stresses to which he and his learned colleagues are subject. He was admirably open minded in the matters that we discussed with him and on which we asked his opinions.
In conclusion, if our laws are, as we find and as has been said again tonight, incomprehensible and chaotic, it brings the law into disrespect, and that brings Parliament into disrespect. We should take pride in the quality of our work as legislators, but it is clear that a vast amount of our work gives us no cause whatever for pride. Badly written laws are a disservice to the people themselves, because it causes them to suffer injustice, inconvenience and expense. It may sometimes also defeat the object of Parliament and lead to disorder and to flagrant violation of the laws.
We have to improve the quality of our legislation, otherwise we weaken our parliamentary democracy. Our Committee's principal aim was to try to strengthen parliamentary democracy by suggesting to Parliament and the Government these many ways of improving our laws.
I am deeply grateful for what has been said in this debate. Let us hope that it will lead to further steps forward in improving the quality of our legislation.
§ 10.22 p.m.
§ Mr. Ivan Lawrence (Burton)
It is a great honour to follow my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) and I hope that no words of mine will dim the brightness of his words or dull the lustre of his message.
The wordsplus ça change, plus c'est la même chosecome readily to mind in this debate. It is a salutary reflection on the Trojan labours of the Renton Committee from 1973 to 1975 that this House should have said that this was a matter of urgency in 1856, but it is an even greater cause for regret when one recalls that one of our Kings saidI would wish that…the superfluous and tedious statutes were brought into one sum together,—and made more plain and short to the intent that men might better understand them;—which thing shall most help to advance the health of the Commonwealth.That was said by Edward VI in 1550.
I, too, welcome this diligent and eminently readable Report because it brings several blasts of good sound common sense to the confused incomprehensible, gargantuan, turgid and seething mass of our statute book. There are three basic problems. The first is that we in Parliament who make the law must be given the time to make it properly, must be given the opportunity to discuss it, to analyse it and to see it tested against expert opinion, and on all of these the purpose of many of the recommendations of the Renton Committee dwells. But—I am merely repeating a theme that has been repeated time and again throughout the debate—the best way in which we can be provided with the time is for us to make much less legislation.
The second problem is that those who have to administer the law must be able to administer it speedily. That means that they must be able to find it and to understand it. That means that computers must be more widely used, that amendments should be more sensibly introduced, and that consolidation must be accelerated with more parliamentary draftsmen. All of these are recommendations of the Renton Committee. It also means that the administrators of the law should have less law to plough through.
171 The third problem is that the people who are governed by die law must be able to understand it, for only from understanding can come respect, and from respect can come the voluntary submission to the rule of law without which our system of parliamentary democracy would be but a sad illusion.
To this problem also the remedy is at least partly a reduction in the volume of legislation. But when the miracle occurs and these three problems are solved, and the wand of the good Renton fairy touches the turgid, seething mass of our statute book and puts most of it to rights will the transference then be permanent?
On this the Renton Report makes a strange recommendation. As my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke), with his usual wit and charm, has observed, the proposal for breathing new life into the Statute Law Committee may be more difficult than is allowed. To quote the opinion of one of our most distinguished former parliamentary draftsmen, Mr. Francis Bennion,They"—the Committee—prefer to load further duties on the Statute Law Committee, an august body that meets once a year and consists of people whose job it is to do something else. The Statute Law Committee have been responsible for our statute law for over 100 years. They are therefore responsible for the deplorable stale it is in. To load further duties on a body that has so emphatically demonstrated its incompetence is no sort of solution.I hope that my hon. and learned Friend the Member for Darwen will not read into that any personal criticism of the no doubt vital function which he and that Committee performs. Mr. Bennion's own recommendation is for a new Statute 172 Law Commission which would, as he says,consolidate sets of statutes dealing with one subject into single Acts, compile indexes, supervise subordinate legislation and local Acts, provide a drafting service for Members of Parliament and set up a training scheme for draftsmen.The Renton Committee rejects this solution, doubtless for good and thorough reasons, and, as a mere beginner in the field of legislation, I would not presume to judge between the opinions of the eminent and the most distinguished.
I make only this point. The continuing supervision of legislation in the future will indeed be a very great problem. It will be a problem that must be solved with farsightedness and good sense. We must consider at least the possibility, as the Renton Committee could not do by its terms of reference, of a Law Officer whose sole responsibility should be the continuing supervision of the statute book, as my hon. and learned Friend the Member for Southport (Mr. Percival) has said.
The pre-eminent feature of such a Minister would be that he would be subject to the relentless activating criticism and questioning of this House. Only if such a one were to come into our midst would we stand a reasonable chance of getting some action upon these proposals which the Government are so fairly considering.
If we do not watch beyond the day of the miracle touch of the Renton wand, we shall still be debating the reform of the statute book in 2075, and yet again an hon. Member, perhaps the then hon. Member for Burton, will have to rise to his feet and say:Plus ça change, plus c'est la même chose.
§ 10.29 p.m.
§ Mr. Graham Page (Crosby)
As there is still some time left to this debate, may I intervene by way of repetition, although not tedious repetition, by congratulating my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) and his Committee on this Report which has been given to us to debate.
The main theme of the debate has obviously been that we should try to make our legislation more simple and clear, and therefore that we should legislate on principle and purpose rather than in detail. If we are to do that, if that is the intention and the House accepts that legislation shall in future be brief and in principle, we must get the balance right between certainty and clarity. Otherwise, if we sacrifice certainty, we shall either give great power of interpretation to the courts or give great power of subordinate legislation to Ministers.
As regards the courts, it would be very nice if we could adopt principles of the sort followed by the great common law judges in their judgments, laying down principles as precedents and saying "This is the principle of the law: let the courts further interpret it". That might be right, but what I fear as an outcome from it is that, if we go too far without having the balance right, we shall merely transfer the debate on the law elsewhere, transferring legislation from this House to litigation in the courts. We shall be asking the citizen to decide the law at his expense in the courts instead of protecting him against doubt as to the law. I recognise that it has been said many times in the debate that our effort to make the law more certain has in many cases made it more uncertain, and that is why I say that we must try to achieve the right balance.
I come next to what I mean when I say that by legislating in broad principle, using the broad brush, we may well give Ministers and the executive too great power and freedom to legislate. I can illustrate the point by using the example which has already been used—the Community Land Bill. There was an effort in the drafting of that Bill to legislate in principle. Naturally, the Opposition, myself included, objected strongly, insisting on knowing what the legislation would 174 be. We wanted to know in the Bill itself what it would be. We were told that the Minister wanted to be flexible, that he wanted to legislate by statutory instrument for the details of the scheme. But, as all Oppositions will, we tried to insist that every detail of it should be put in the Bill.
It may well be, therefore, that if we try to legislate in broad principle, we shall only succeed in pushing the legislation further down the scale into subordinate legislation. Unfortunately, my right hon. and learned Friend's Committee did not have an opportunity to look at the statutory instruments procedure.
§ Sir David Renton
I think that my right hon. Friend may be overlooking yet another possibility—he has not mentioned it yet—which is recommended in paragraph 10.13 of our Report, that we should have the statements of principle in the clauses, when they have to be set out, and where detailed guidance or matters have to be spelled out, have that in the schedules. We felt that that would make for greater clarity without sacrificing the certainty which my right hon. Friend wants.
§ Mr. Page
I had not overlooked that. But I think that what will normally happen is that it will not be put in the schedules but be left to subordinate legislation. The Minister will be given powers to legislate by order. Unless we improve our procedure for examining subordinate legislation, I fear that we may fall into a trap.
§ Mr. Peyton
I hope that my right hon. Friend will be careful lest his intelligent and sensible words offer opportunities to those less well intentioned, to wicked men quite different from himself. I hope that he will make clear that nothing he is now saying should be taken as conveying for a moment that the first edition of the Community Land Bill was in any way clear.
§ Mr. Page
Certainly not. What I said was that there had been an effort to legislate in principle rather than in detail. I did not say the effort was successful.
If it is true that we must leave much more of our legislation to statutory instruments in order to achieve a broad brush in our statute law, there should be an 175 examination of the proposed instruments in the Standing Committee considering the Bill. The instruments which a Minister proposes to make have frequently already been drafted while the Bill is going through the House. The Standing Committee should be kept in existence for, say, six months after a Bill has become law in order to consider any statutory instruments brought into operation. This would relieve our statute law of a great amount of detail.
Why does every Bill have to die upon Prorogation? In the past few weeks, we have seen Bills rushed through just because they must be passed before Prorogation. Surely we can change our Standing Orders so that we can spread out our consideration of Bills.
The appointment of more parliamentary draftsmen to assist in the consolidation of our laws is one of the most advantageous acts any Government could perform. Consolidation is not exciting work. For several years, I took part in late night debates on consolidation Bills—in which it is very difficult to keep in order—and there was usually only a Minister and myself in the Chamber. I always thought it dull work, but one night someone leapt to his feet in the Public Gallery and shouted, "You bastard.". I apologise for the unparliamentary language. He jumped over the rail and a body came hurtling down on to the Floor of the House. I thought at the time that if I could raise that sort of emotion on a subject like consolidation, what could I do on something else?
§ 10.38 p.m.
§ Sir Michael Havers (Wimbledon)
I congratulate my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) and offer my person admiration on what is a remarkable Report, not least for its clarity. I regret the low attendance for a debate which is of importance to every hon. Member. As my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) said, the results of what we do in legislation are either to our credit or to our shame. It is to be regretted that we have such a small turnout and that so few laymen have spoken. Those who say the lawyers have swamped it because they have hogged it should know that there has been no non-lawyer who has sought 176 to catch Mr. Speaker's eye who has not been called.
§ Sir M. Havers
I thought that I had made my point clear. I am sorry that I was not speaking in a lecturer's tone.
It is sad that there is only one Government back bencher present for the wind-up speeches. The hon. Member for Walsall, South (Mr. George), in the course of the lecture he delivered, appeared to have no time for the Report until he was called to order by the Chair. He seems to have developed an antipathy for the judiciary. As I am sure the Solicitor-General will confirm, the hon. Member's phrase about the Government dominating legislation and, in some aspects, having a great influence over the judiciary is totally wrong and absolutely false.
My hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) spoke, as have so many hon. Members, of overloading the machine, and he pointed to something I had not thought of before which is clearly right—the use of the statute book on occasions for propaganda purposes. That is something over which every hon. Member should keep a close eye with a Government of any complexion.
My hon. and learned Friend spoke fondly of the Statute Law Committee—more fondly than did my hon. Friend the Member for Burton (Mr. Lawrence) who referred to it in terms which make me as a very new member, who has not attended a meeting, slightly worried about what will happen when I get there.
The hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) made a clear and valuable contribution to the debate and spoke of the need for the law to be in language the layman could understand, a plea which was echoed by my hon. and learned Friend the Member for Dover and Deal (Mr. Rees). The hon. and learned Member should have paid great attention to my hon. and learned Friend. However hard one tried with the Finance Bill it would be quite impossible to put it into language which the layman could understand, not only in respect of the clarity 177 of the language but in respect of the Government's intention in seeking to close loopholes left by earlier Acts.
The hon. and learned Member for Hackney, North and Stoke Newington said that there was too much legislation in too short a time, that this imposed a heavy burden on draftsmen, that there were unsatisfactory draftsmen, and that Bills prepared by the Opposition should have the benefit of expert advice. He said that he was a strong believer in gradualism, and I hope that tomorrow he will be waiting on the Prime Minister's doorstep to tell him as strongly as he told us about this matter. The hon. and learned Member made a useful contribution to the debate, particularly in his warning of the danger of the Government treating the debate more as an academic exercise than as an intention to act upon it.
My hon. and learned Friend the Member for Dover and Deal said that taxing statutes should be consolidated in one measure. I wonder how many pages such a measure would fill, and what the task of drafting that measure would be. I believe that it could be done, and I suspect that a great deal of pruning could take place in the process of putting it all into one volume. That would be a solution of immense value to all those who have to advise on tax matters. My hon. and learned Friend made the very good point that one must look deeper, that the Renton Committee had not been allowed to look at the pre-legislative process, and spoke of the obsession with secrecy.
It has been suggested by a number of people, including one or two right hon. and hon. Members, that we should give consideration to the publication of draft Bills for comment before Bills are finally published. There may be something to be said for this. It might get round the problem that the Renton Committee considered—and then dismissed—about a sort of First Reading debate.
The obsession with secrecy is curious, because it applies to Members of this House, not to the bodies whom the Government are always prepared to consult and to whom they tell what is in a proposed Bill. They are given third and fourth prints sometimes of a Bill, while we know nothing about it except what comes by the back door and by way of whispers, rumours and Press leaks.
178 We could get away from this altogether if a draft Bill were published. There would be circumstances in which the action following a Bill would be such that it could not be published in advance, but many Bills do not have that drawback, and the draft could well be published in advance so that people could comment.
I sympathise and agree with the comment of my hon. and learned Friend about the determination of every Government always to cover every possible detail in a Bill. Mr. Justice Byrne, a great judge who had been senior Treasury counsel at the Old Bailey for years—one of the few holding that office to be made a High Court judge—always advised those preparing indictments, "Do not have an indictment containing 10, 12 or 20 counts. Do not go round looking for all the holes you can find to stop up. Make up your mind which crime or crimes the man has committed, and charge him with those. If he is convicted, you have done your job. If he is not, good luck to him."
With some of the indictments at the Old Bailey, and with some of the Bills going through this House, one can almost see people looking for every possible hole in order to stop it up. The result is that the legislation becomes completely top-heavy and far more complicated than it ever need be.
My hon. and learned Friend the Member for Southport (Mr. Percival) spoke of a matter that he considered of great importance—and I agree with him—in No. (19) of the summary of recommendations: the convenience of the ultimate user. He spoke also of ministerial responsibility for the quality of legislation, and referred to the exchange of letters between my right hon. and learned Friend and the Prime Minister, in which the Prime Minister spoke of law Ministers still having the responsibility for the supervision of legislation.
I simply do not understand it. It may be that my successor, who will be winding up the debate, is in a luckier position than I was when I held his office. It is absolutely impossible for any Law Officer to look at legislation across the board, to look at every clause of every Bill. I doubt whether there is a single Member in the House tonight, lawyer or otherwise, who can put his hand on his heart and 179 say that he has examined with care anything like one in five of all the Bills that have gone through this House within the last 12 months—certainly not to look at every line of every clause. I do not believe that any Law Officer or pair of Law Officers would be able to do it.
Certainly they would look at matters which involved the liberty of the subject, at matters which might involve a degree of retrospection, or improper use of a power by a Minister, or a provision that appeared to be contrary to natural justice, but they would not be able to make recommendations as to brevity and clarity in every clause of every Bill to be considered by this House.
I will not say that the Prime Minister was being far from frank but I think he was a little over-optimistic about the influence exercised at the moment upon the general quality of legislation going through this House by what he calls—though I do not know of any such office in our present administration—the Law Ministers.
The House must be grateful to my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop), who drew attention to the fact that delegated legislation is in bulk greater than statutes. Having become a member of the Committee concerned, which receives as much contempt as praise from the House, I have been sent recently the volumes dealing with statutory instruments for the last quarter of, I think, 1973. There are four volumes dealing with three months. It is true that, one, the bulkiest of all, is entirely taken up by various Customs and Excise regulations and orders.
If such regulations, which must be purchased at ever-increasing expense, are to achieve anything they must be mastered by somebody. We are imposing an intolerable burden upon all professional people who are expected to keep up with what is going on. Solicitors are now frank enough to tell their clients that they cannot keep up. That is not their fault but ours. We churn the stuff out at such a rate that it is impossible for any professional man such as a small country solicitor, who is not a specialist and who has to speak across the board and help people with all the various problems that 180 they have, to master it all. He perhaps has just one partner.
My hon. Friend the Member for Lewes (Mr. Rathbone) said that time was of the essence, and emphasised the need to have enough parliamentary counsel. He spoke of what I thought was the original proposal in the Report to use computers to make legislation more efficient. I am sure that it could be done. If the United States can put the whole of its law reports effectively into computers, as it apparently has done, we certainly should be able to put all our statutes into computers equally efficiently.
My. hon. Friend also spoke of the link between the debate and the increasing discussion about a Bill of Rights, saying that such a Bill would improve the quality of legislation. The Bill of Rights is a subject in which I have become increasingly interested. This is a spin-off that I had not considered, but I see the value for the quality of legislation.
My hon. and learned Friend the Member for Royal Tunbridge Wells has told us that we do not understand the consequences of what we are doing. It is because we cannot master it. We cannot all see what is going on. The bulk of the legislation is so great that we cannot keep in line with it. My hon. and learned Friend and I came across an example a comparatively short time ago. After a Division, for which there had been a three-line Whip, I was about to leave when my hon. and learned Friend drew my attention to the fact that a Church measure was to follow. He had done what I had not, and what I suspect very few lawyers in the House had done. He had read it, and he had found in it provisions which stared out at anybody who looked at it as being, at least on the face of them, contrary to the principles of natural justice.
A number of my hon. and learned Friends who are present tonight stayed behind. We asked the Second Church Estates Commissioner to have the sense to take the measure back to the General Synod of the Church of England to reconsider it. He decided that he would not, and we then made certain that that measure did not go through.
The moral of that is that none of us, except my hon. and learned Friend, had seen the measure or read it with the care 181 that it deserved. I suspect that the Law Officers had not seen it either. I am certain that if they had the learned Solicitor-General would have taken the same view as I took.
There are a number of recommendations in the summary to which I pay particular attention. They are all important. The fact that I single out some of them does not mean that I consider them to be more important than others. They are the ones which especially attracted me. Advice on draft Bills being sought from specialists in the relevant branch of the law is one such example. I was particularly impressed by the suggestion that the Law Commission's drafting strength should be restored and further increased as soon as possible. There was also the recommendation to the effect that the use of statements of principle should be encouraged and that the statute should be arranged to suit the convenience of its ultimate user.
There were also criticisms of legislation by reference, which I have always found an unattractive way of working unless it can be absolutely clear. It is wrong that the users of what we produce should have to pick up one Act and start tracing backwards through the statutes to find out what we mean in 1975. I will not weary the House with the other matters. What we can say is that it is useless to have proposals of this sort unless the flood of new legislation is slowed down. There were 1,500 pages of it a year in the late 1960s and there are over 2,000 pages of it now, without taking into account statutory instruments. This flood not only erodes the quality of the legislation, but ultimately in many cases, I suspect, washes the quality completely away.
May I seek an assurance from the Solicitor-General—I know that it is one which he will be able to give us—that when the Government are considering these recommendations there will be no intention to increase legislation by enabling Bills and the use of statutory instruments? That is a process which is even more dangerous than our present system. I hope that the Government will show more enthusiasm than was shown during the course of the Solicitor-General's opening speech. It may well be that the speed at which the hon. and learned Gentleman went was not meant to 182 indicate any lack of enthusiasm. Unfortunately that was the impression I received.
§ 10.57 p.m.
§ The Solicitor-General
This has been a good debate. I find myself in agreement with the hon. and learned Member for Wimbledon (Sir M. Havers) that it deserved a better attendance. Certainly it offered an opportunity for some hon. Members to beat the Government. That must have been irresistible, and I do not complain about that. It was perhaps less than generous of certain Conservative Members to suggest that there was any lack of enthusiasm on the part of the Government over the Report. Quite what I could have done to emphasise our enthusiasm more than I did I find it difficult to understand.
Obviously I could have come here with the Government's mind already made up on all the important issues. We would have been criticised for that. Many of the suggestions made tonight assist in meeting the objective we all share. They have attempted to face the problems facing all Governments. I hope that I shall be forgiven if I do not comment on all the suggestions made. Certainly they will all be given due consideration.
The theme which has been repeated perhaps most frequently during the debate is that found in paragraph 7.2 of the Report dealing with the weight of the legislative programme. No one is more conscious than Ministers of the Crown of the heavy load of legislation with which the House has been confronted—nor, indeed, of many of the consequences.
The hon. and learned Members for Darwen (Mr. Fletcher-Cooke) and Dover and Deal (Mr. Rees) argued from this that the answer to many of the problems was a reduction in the load of legislation. I am not sure that that follows. I take on board what is said in the Report about the consequences of the load. But if there is a good reason for introducing a number of statutes, we do not solve any problem by pointing to the difficulties to which they give rise. Whether we think some or all of them are desirable depends on our view of the policy they implement. This is not wholly a party matter but something obviously turns upon which party is in Government. There was a period when those of us on 183 the Labour benches would willingly have dispensed with the Industrial Relations Act and the Housing Finance Act. But as my hon. Friend the Member for Walsall, North—
§ Mr. George
In the course of the evening I have been admonished by Mr. Deputy Speaker for being too long, by my hon. and learned Friend the Member for Hackney North and Stoke Newington (Mr. Weitzman) for being philosophical and irrelevant, and in my absence I have been accused of being a Marxist. I accept all that, but being called the "Member for Walsall, North" is too much.
§ The Solicitor-General
As a close neighbour of my hon. Friend the Member for Walsall, South (Mr. George) I can only grovel, but I was on his side on this point. Perhaps he will forgive me a measure of calumny. As he and my hon. Friend the Member for Glasgow, Mary-hill (Mr. Craigen) said, it is not self-evident that a decrease in the bulk of legislation is desirable, and certainly it does not follow that that would be equivalent to greater freedom. Legislation may be intended to remedy what are already inhibitions on freedom.
The Committee recognised in Chapter VII that the pressures at present towards a greater bulk of legislation are very real and recognisable. A party which is in government and does not fulfil its election promises gives rise to criticism in that respect. This is where a Government just cannot win.
My hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) suggested as a possibility that Opposition parties should come to office with draft legislation already prepared. Obviously, every Opposition consider what they would do if in government, but I find some reservations with the suggestion that one could present the parliamentary draftsmen with a half-drafted Bill. I am not sure that that would be the answer.
Certainly the Government have not overlooked the strains which are imposed upon us by trying to do too much, and the point made by the Committee is obviously taken. One possible solution came from the right hon. Member for Crosby (Mr. Page). I, too, cannot understand why Bills automatically have to die 184 at Prorogation, and that is certainly a question I shall invite those concerned to answer.
The hon. Member for Tiverton (Mr. Maxwell-Hyslop) pointed to the bulk of delegated legislation and gave the startling statistic that it constitutes more than half of our total legislation. There are a number of possibilities about what one could do about it. One possibility is to reduce the amount of delegated legislation by simply not dealing with the subjects. That again depends on one's view of policy. Another suggestion which would go some way towards solving the problem came from the right hon. Member for Crosby, who said that the Statutory Instruments Committee might be invited to consider the merits of certain of these instruments. That is a matter which ought to be considered, and I give an undertaking that what has been said about it will be carefully considered.
On the question of aids to understanding, the hon. and learned Member for Darwen made a proper protest about the habit which all Governments sometimes have tended to adopt of either beginning their legislation with, or including in it, something which is not intended to have legislative effect but is merely there as a crusading declaration of intent. He pointed to certain examples from nationalisation statutes. To show that we are all impartial, I am sure that he will forgive me if I quote:The provisions of this Act shall have effect for the purposes of promoting good industrial relations in accordance with the following general principlesThe first principle is:the principle of collective bargaining freely conducted on behalf of workers and employers and with due regard to the general interests of the community.No doubt he will recognise that quotation. It is from the Industrial Relations Act 1971. But, having balanced the examples, I fully take the point and go along with him.
§ Mr. Peter Rees
Would not the hon. and learned Gentleman consider that what followed was to be construed in the light of that general declaration? Perhaps he is not being entirely fair to that Act, which of course he looks at with the slightly coloured eyes of the partisan.
§ The Solicitor-General
The hon. and learned Member for Darwen gave similar 185 examples from legislation of which no doubt he disapproved. I was giving a counter-example. It can be argued that declarations of this kind have some legislative effect. Broadly speaking, if all that is intended is a crusading declaration, I think I am on the side of the hon. and learned Member for Darwen, but obviously this is a matter which should be considered carefully.
The hon. and learned Member for Dover and Deal, with an expertise which we all recognise on fiscal matters, referred to the capital transfer tax and the way in which it was drafted. Perhaps one should not spend too long on this point, which is not wholly in the mainstream of the debate. The CTT was replacing the estate duty tax, a duty based principally on death. Those responsible for the draftsmanship thought it appropriate to introduce a new framework. But certainly, as the hon. and learned Member for Wimbledon said, most of us would agree that there are peculiar problems in the realm of tax legislation, and certainly we find particular difficulties there in reconciling the various objectives of legislation.
I come now to another vexed question—ministerial responsibility. The suggestion, as I understood it, was that there should be one Minister responsible for the quality of the statute book. Those of us who have such a responsibility might welcome anything which would to some extent lighten our burden and strengthen our arm, but I am not sure what function such a Minister would have in actually producing less legislation.
If the suggestion is that he would approach in turn all of his ministerial colleagues who are responsible for policy and try to persuade each of them to reduce the number of policies he proposed to implement, I am not sure that government could work in that way and that the effect hoped for would be gained.
§ Mr. Percival
One way in which it might work is that the Minister responsible for the quality of legislation might be in a position to make a Department take back a piece of legislation which really was bad and not bring it forward again until it had it in comprehensible language. This would reduce the burden or at least the task of the House.
§ The Solicitor-General
That is a different matter, and I was coming to it. Certainly there should be someone who should scrutinise legislation for the purpose of saying, if necessary, "This is not very well prepared and perhaps should be looked at again". The hon. and learned Member for Wimbledon, with his experience of office, will know the way in which these matters work in government It is a complex and delicate series of relationships. The departmental Minister who introduces a piece of legislation must obviously accept responsibility to the House for it. It would be an impossible situation if that responsibility were shared. If the House has any criticism of the quality of draftsmanship it should be directed at the departmental Minister who presents the Bill.
But there is also a responsibility on Law Ministers, who attend the Committees where these matters are considered, who consider the legislation itself and who are at the apex of the pyramid of which the parliamentary draftsmen form part. They certainly have a responsibility. I accept that they cannot possibly scrutinise every piece of legislation which is ever directed to the statute book, but nor could any other Minister. That, as I understand it, was not the purport of the Committee's recommendation. What was suggested was that there should be a Minister who, when the appropriate officials direct attention to a drafting problem or when such a problem emerges in the course of consideration, should have the responsibility and the power to direct the attention of his ministerial colleagues to it. That is a function of the Law Ministers, who for this purpose include the Lord Chancellor, who is a member of the Cabinet.
§ Mr. Mayhew
Would not the hon. and learned Gentleman agree that nothing should ever be done or said to diminish the special position in relation to the Government and to the House of Commons occupied by the Law Officers? Does not the introduction of this term "Law Ministers" serve to diminish that special position?
§ The Solicitor-General
No, I do not think it does. It was simply intended as a term to include the Law Officers and the Lord Chancellor, but if the hon. and learned Gentleman wants me to say "Law 187 Officers and Lord Chancellor" wherever the phrase occurs in my speech, of course I will do it.
§ Sir David Renton
This is an important matter which needs to be clarified, bearing in mind what the Prime Minister said in his letter to me of 11th September, which has been published:My conclusion is that no change in the existing Ministerial arrangements is called for.We had no evidence that the Lord Chancellor had a general responsibility. Indeed, in my letter to the Prime Minister I said that all except two of us felt that the Lord Chancellor should have a general responsibility placed upon him. The letter goes on:This general responsibility is already clearly placed on the Law Ministers, subject of course to the collective responsibility of Ministers generally, with the Lord Chancellor a Member of the Cabinet.My reading, and others' reading, of that was that "Law Ministers" was an alternative description of the Law Officers and was not intended to include the Lord Chancellor, but as the hon. and learned Gentleman has now said that it does include the Lord Chancellor, that places a different and important interpretation upon the Prime Minister's letter to me.
§ The Solicitor-General
Certainly that is my understanding, that there would be consultation on any point where it was required between the Law Officers and the Lord Chancellor.
I was asked to whom questions relating to these matters should be addressed. Since the Lord Chancellor is not in this House, they should be directed to my right hon. and learned Friend the Attorney-General in relation to drafting matters. In relation to supervision of the parliamentary draftsmen they should be directed to my right hon. Friend the Prime Minister.
§ Sir David Renton
In relation to the implementation of the recommendations in the Report, if and when the Government accept them, to whom would the questions then be directed?
§ The Solicitor-General
I can only repeat that in so far as they relate to drafting matters they will go to my right hon. and learned Friend the Attorney-General, and in so far as they relate to 188 matters affecting the draftsmen they will go to my right hon. Friend the Prime Minister. I am sorry that I cannot be more helpful.
The right hon. Member for Crosby pointed out what I thought was the central theme of the problems with which we are dealing tonight—namely, that we have to draw a balance between the many interests to be served by legislation and, in the process, to strike a balance between broad declarations of principle and that certainty for which the courts and the legal profession have traditionally asked. I thought that that was the point my hon. Friend the Member for Walsall, South was making in the comment for which he was criticised. I did not interpret what he said as meaning that judges were subject to some kind of improper pressure from Government and would submit to such pressure if it were applied but that the detailed content of legislation imposes a kind of constraint on the judiciary. Of course, we accept that because it is the existing system.
§ Mr. George
Perhaps I may try to set the record straight. What I said was descriptively correct. The fact is that there are Law Officers who are politicians, and the Lord Chancellor is a politician holding a position at the apex of the Cabinet and the judicial system. That strikes me as constituting influence by the political on the judicial. That is not to suggest that any secret deals are being made between Ministers and judges. That is not the case. My analysis was not, as some suggested, a Marxist analysis. It was a gentle admonition of the way in which our political system operates with the linkage between the Cabinet, the judiciary and the legislature.
§ The Solicitor-General
I thought that I had misunderstood my hon. Friend, but if he is suggesting that the judiciary is subject to political pressure by reason of the position of the Lord Chancellor, I can only say that that is not the case.
The right hon. Member for Crosby mentioned the need for lawyers to advise their clients clearly as to the likely outcome of litigation before they had incurred heavy costs. That appears to indicate a fair amount of detail in our legislation and a high degree of predictability. Against that, one has to balance other 189 considerations mentioned by the Committee. The hon. Member for Lewes (Mr. Rathbone) mentioned the impact of a Bill of Rights. It is probably true that we shall all have to learn to interpret a new kind of legislation with a different texture, because both parties are pursuing studies on this matter and because the courts are now constrained to look at EEC legislation. For both reasons we shall all have to learn different techniques of statutory interpretation.
Most of the matters discussed in this debate are not party issues. Most of the contributions did not seek to make party points. I was sorry that a number of contributions sought to reflect on the sincerity of the Government's commitment. The right hon. Member for Yeovil (Mr. Peyton), who unhappily is not with us at the moment, apparently found no complaint in the content of what I said, but accused me of galloping through my speech. That was an allegation dutifully echoed by the hon. and learned Member for Southport. We have learned better than to expect a more generous reaction from the right hon. Member for Yeovil, and one cannot accuse him of over-conciseness in most of his remarks. If his complaint was simply one of style, I apologise to those who may find my style offensive. But if the complaint was that I did not present the House with a complete package of all the Government's conclusions on the recommendations of the Committee, it appears that this is a matter on which the Government cannot win. If the Government, in advance of the debate, had tonight said, "We have made up our minds about these matters", that, too, would have been the subject of criticism.
§ Mr. Percival
In accusing others of being less than generous the hon. and learned Gentleman is being less than generous himself. He referred to me "dutifully echoing" an allegation. He ought to know me better and to know that I do not echo allegations, dutifully or otherwise. They may be right or wrong. Perhaps I may try to respond to what he is saying. I hope that he will deal with the point. His present speech is a much better speech than that which he made at the beginning of the debate. Now he is seeking to argue various points, whereas the first speech did not seem to contain much. Several 190 of my hon. Friends felt that. It did not indicate much thought about this point. This is a much better and more useful speech.
What I was saying was that the Prime Minister's letter was saying that there is a clear ministerial responsibility already. If that is so, it is something which has escaped all of us so far. That is where the hon. and learned Gentleman was complacent, and that is why I commented on that point adversely. I was saying to the hon. and learned Gentleman that his first speech did not seem to add anything to that. I hope now that he will be more generous and forthcoming. He is—
§ Mr. Deputy Speaker (Mr. George Thomas)
Order. The hon. and learned Gentleman spoke for 20 minutes earlier, and this is a very long intervention.
§ The Solicitor-General
If I were guilty of galloping through my speech, I am certainly prepared to echo what I said a moment ago. No one could accuse the hon. and learned Gentleman of galloping through that intervention.
However, I repeat that this is something on which the Government cannot win. First, if I had presented the House earlier this evening with a long and a detailed speech, I would have been subject to the comments, which are often very properly made, that the Front Benches take up too much time. I was conscious that I was hoping, with permission, to speak twice tonight. But certainly I have not attempted to present the House with the Government's conclusions on this matter because this debate was precisely what the Government were waiting for.
Perhaps I may say that some of us are as concerned as right hon. and hon. Members of the Opposition about these matters. We have been thinking about them for just as long. We said the same things when in Opposition. We have read the Report of the Committee just as assiduously, and we are as grateful to the right hon. and learned Member for Huntingdonshire (Sir D. Renton) as are the Opposition. We are just as determined to do what we can to improve the quality of the statute book.
My hon. and learned Friend the Member for Hackney, North and Stoke Newington asked me to repeat the assurance that the Governmnt were taking this matter seriously and that what was 191 said tonight would result expeditiously in whatever action the Government genuinely think appropriate. I repeat that assurance without qualification. What has been said tonight will play a very important part in that consideration.
§ Sir Michael Havers
Will the hon. and learned Gentleman deal with the question of there being no intention in the Government's mind to make greater use of enabling legislation? I am sure that he can deal with that point.
§ The Solicitor-General
The hon. and learned Gentleman asked me that question previously, and I am sorry to have omitted an answer to it. All that I can say about that is that we on the Government side of the House are as critical in general of enabling legislation as are right hon. and hon. Members of the Opposition. But just as on occasion they found it necessary to make use of it, I cannot give a blanket undertaking that it will never be used. I am sure that the hon. and learned Gentleman will understand that.
§ Question put and agreed to.
Resolved,That this House takes note of the Report of the Renton Committee on the Preparation of Legislation (Command Paper No. 6053).