HC Deb 20 January 2000 vol 342 cc1094-100

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Dowd.]

7.36 pm
Mr. Brian White (Milton Keynes, North-East)

The right hon. Member for Berwick-upon-Tweed (Mr. Beith) earlier referred to impossible battles, and I shall try to take one on. I am indebted to the hon. Member for Rutland and Melton (Mr. Duncan) for his comments on Second Reading of the Electronic Communications Bill. I worry about being so heartily in agreement with a member of the Tory party, but it happens sometimes. I should also put on the record our debt to the House of Lords for debating the matter of plain English several times. I acknowledge the help of the Plain English Campaign, which, since this debate appeared on the Order Paper, has given me some interesting material.

We should start by asking whose interests we serve. In every sphere of life, in government and business, we are moving from being a producer-oriented society to being one in which users and consumers come first. It is unfortunate that Parliament lags behind. The interests of our constituents should be the primary focus when we draft legislation. A myth exists that some language is "right" and some "wrong". In truth, language evolves. For example, there is currently an interesting debate about Spanish as Hispanics in the United States of America are changing the language. Language changes.

My main concern is legalese language that is difficult to understand. By that, I mean such things as unnecessary technical terms, the impersonal style of Bills, twisted word orders, needless repetition or elaboration, unhelpful layout, long sentences, use of double negatives, use of passive verbs rather than active ones and so on. I want to deal with several different areas in this debate.

First, I propose that we have a purpose clause in every Bill. Secondly, we should review legislation as much as pass new legislation. Thirdly, we should tackle the issue of non-sexist language in Bills. Fourthly, we need to use plain English in legislation, particularly statutory instruments.

I am a member of the Select Committee on Public Administration, which considered the Freedom of Information Bill. It was suggested that the Bill should have a purpose clause, as has been proposed on several other occasion. Nearly every time, such clauses were rejected as setting a precedent. It is not conventional to include them. Occasionally, as in the case of the Children Acts, purpose clauses have been accepted but, in discussions on whether a Bill needs one, we are usually told, "We don't want to do it in this Bill because that's not the way it is generally done." Every Bill should have a purpose clause. Some people will point out that, since Pepper v. Hart, Ministers' comments can be taken into account. However, as Lord Lester, who gave evidence to the Select Committee, pointed out, that would be true only when the wording in the Bill is unclear. Only then would the court resort to Pepper v. Hart.

A purpose clause in every Bill would not only explain the intentions of the Bill, but guard against unforeseen implications and prevent the semantic errors that dog so much of our legislation. It would make the intentions of Ministers clear to the courts in any subsequent arguments over interpretation and enhance our legislation.

One of the things that we do well in this place is pass legislation; its quantity is testimony to that. However, we rarely review it. When we do so, it is either after a change of Government or because there is a crisis or uproar. The Child Support Agency is a classic example; we reviewed it because it was not working. There were problems, pressure built up and we had to reform it. In other cases, the review is in response to rulings from the European Court—as has happened in the case of the armed forces legislation—or to European directives.

In America, sunset clauses in Bills have become popular. I support them in certain circumstances; they can play a valuable role. The inclusion of such a clause in the Electronic Communications Bill is a useful innovation. We need to build a quality review process into every piece of legislation and to ensure that, as times change, the purpose of the Bill changes with them. Too often, circumstances change, but legislation fails to catch up.

The Select Committee on Deregulation has a role to play in that matter. The Committee could consider legislation and initiate changes through its procedures. I urge the Minister, in his review of the Committee, to consider that matter. I realise that the Law Commission examines legislation. I do not suggest the replacement of its role; I want a political review rather than the technical one that it necessarily undertakes.

I find the use of sexist language in our legislation hard to stomach. When I entered local government in the 1980s and when I was growing up in the trade union movement, there were battles about the use of sexist language. Those battles are over. In business, in local government—even in the local pub—people manage to talk in non-sexist language; it has become the norm. The one matter where we have not caught up is in the drafting of Bills.

I fully expect the forces of conservatism to continue to use offensive and degrading language. Some hon. Members would be quite prepared to use it deliberately. However, we should not have to acquiesce in that practice. It is important that Bills are written so as to avoid the use of "he" in references to a man or woman. For example, clause 10 of the Electronic Communications Bill contains the words the Director shall not make any modification unless … he has considered every representation made to him about the modification". Why cannot we say that the Director shall not make any modification unless representations about the modification have been considered"? We do not need to use the word "he" in that context.

I am not worried if the odd bit of sexist language slips through. My point relates to the use of language and the cultural change that is needed, not to the requirements of narrow political correctness. However, we desperately need to address the issue.

If we expect people to follow the law, it is important that they understand it. I hope that I am a reasonably intelligent person, but, if I have to read every Bill three or four times before I understand it, there really is something wrong. Acts of Parliament should not just be for lawyers and MPs. That difficulty in understanding legislation is a problem for our democracy.

An example occurred this week when the Joint Committee on Statutory Instruments was considering a regulation on the working families tax credit, which is one of the best measures that the Government have introduced, and which has helped many people. The tax credit is paid through employers. S.I. No. 3219 details how it should be paid and in what circumstances. The Committee Clerk could not understand a particular part of the regulation. If someone as eminent as a Clerk can misunderstand such a crucial piece of legislation, which is the cornerstone of the Government's policy to help people out of poverty, what hope has a small business man or woman of understanding it?

We use pre-legislative scrutiny a great deal now; it is becoming the norm. I welcome that innovation. Part of the consultation process ought to be to submit every draft Bill to the Plain English Campaign. The aim should be to ensure that as many Bills as possible get a crystal mark, although certain technical Bills might not be able to achieve it. I understand that the Scottish Parliament would have achieved that mark recently, but for a few minor points.

In Canada, the Uniform Law Conference's drafting conventions say: An Act should be written simply, clearly and concisely, with the required degree of precision, and as much as possible in ordinary language". If there were any Tory Members here, I would upset them with my next quote because even the European Union guidelines say that the wording of an Act should be clear, simple, concise and unambiguous". The use of technological terminology should be appropriate, and Acts should not include redundant or archaic words and phrases.

I accept that change is not the easy option. It would be easier to continue with jargon, legalese and convention. I recognise that it is hard to achieve precision, clarity and ease of understanding and that Parliamentary drafters would have to do a lot more thinking. However, it does not help legislation if we produce Bills with 127-word sentences and excessive detail. That leads to complexity, obscurity and uncertainty.

The Freedom of Information Bill states: Where, on making his request for information, the applicant expresses a preference for communication by any one or more of the following means, namely (a) the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant", when the applicant is simply asking for a copy of a record. The Irish Freedom of Information Act says: A head may give access under this Act to a record providing the requestor with (a) A copy of the record". The Australian Act says: Access to a document may be given to a person in one or more of the following forms — (c) Provision by an agency of Government of a copy of the document". That is simple and everybody understands it. Why do we need to make it unnecessarily complex and ensure, through the tautology of language, that people do not understand what we are asking them to do?

The British Bill has 86 clauses and seven schedules; the Irish Act has 48 clauses and three schedules. By making our legislation unnecessarily complex, we do a disservice to our democracy by placing citizens at the mercy of the bureaucratic state and by making it easier for people to make the legitimate excuse that they did not understand what we were asking of them.

There is a myth that plain English is not legally accurate, but that has been steadily and repeatedly shattered. In the United States, 44 states have some form of requirement for plain English, and there has never been a case in which a contract has been declared less legally valid because of the use of the plain English.

We need to replace the long sentences, the verbiage and the countless double negatives. I do not understand why we have to frame legislation in negative terms. We should replace the old formalities with concise, simple, familiar and precise language.

Nowhere is that more important than in statutory instruments. Last year, we produced more than 3,000 statutory instruments. Why do we need to dot all the i's and cross all the t's? We need a third way of regulation. The laissez-faire of let it rip should not apply and neither should we nail down everything to say how a particular regulation should be implemented. We should set the objective of the regulation, but not necessarily worry about how people achieve it. We should set the way forward. That is a true third way for regulations.

At present, 60 statutory instruments go through each meeting of the Joint Committee on Statutory Instruments and consideration of them lasts for about 30 minutes. That shows how much attention is given to them. Unless they are made much clearer and the scrutiny is made much better, our system of checks and balances will be lost.

We have started to modernise government, but I recognise that there is a long way to go. Although I do not expect the Minister to wave a magic wand—but if anyone could do that, he could—and accept everything that I say, I seek a commitment from the Government that they will consider the issues. I hope that they will examine purpose clauses, the language of Bills and review the way that we legislate.

In 1997, the Prime Minister said that we had been elected as new Labour and that we intended to govern as new Labour. I think that he has been true to his word. In fact, the Plain English Campaign said that its finest hour was when the Lord Chancellor introduced the Access to Justice Act 1999, which ended Latin usage in the courts. If we can do that in government—we are doing really well with thousands of documents and White Papers—why cannot we do it in legislation? Let us have a third pillar and start to legislate as new Labour with plain language.

7.52 pm

The Parliamentary Secretary, Cabinet Office (Mr. Graham Stringer)

I congratulate my hon. Friend the Member for Milton Keynes, North-East (Mr. White) on securing this important debate. It is highly appropriate that my hon. Friend, who did so much to secure the future of the material on which Acts of Parliament are written and stored, should turn his considerable energies and intelligence to considering what is written on the vellum.

I have much sympathy, as do the public, with my hon. Friend's points, and I shall try to answer them in the order in which he raised them. If I fail to deal with them all, I shall write to him.

By "purpose clauses" people sometimes mean guiding principles for interpreting the text, and sometimes statements of principle on which the detail of legislation is based. In either case, the statements are intended to have legal effect. It is wrong to think that using those techniques in all Bills would be an advance; they would often create confusion.

Guiding principles may be open to interpretation in many ways. The result is vague law: citizens cannot know with any certainty how the law affects them in their particular circumstances. That approach can have a place, but it must be used with the utmost caution.

With statements of principle, the problem is duplication. There is a real risk of inconsistency between statements of principle and the detailed provisions of an Act, because the same thing is said twice in different words. That can create a dilemma in deciding where the balance lies between the general principle and the specific rule, and which of them matters most in specific circumstances. Those views have been taken by successive Governments and are supported by the two main modern reports on the law-making process—the Renton report of 1975 and the Hansard Society report of 1992.

Both types of material have their uses, and examples can be found in various Acts in recent years. There are good reasons not to include such statements in Acts as a routine practice, but we shall continue to use the techniques where it is helpful to do so.

It is highly desirable that the purpose of a Bill be explained, but it should be explained alongside the legislation and not in the legislation itself. As part of the modernisation programme, the Government took up a proposal by the Office of Parliamentary Counsel for explanatory notes and introduced them from the beginning of last Session. They are published alongside Bills and are available to the general public from the Stationery Office and on the internet. They are prepared when the Bill is first introduced; revised when the Bill enters its Second House; and revised again when the Bill receives Royal Assent.

The new notes do not form part of the Bill and do not claim to be authoritative or to have received Parliament's approval.

Mr. White

Does my hon. Friend accept that some explanatory notes have caused problems for those seeking to understand them, or have simply repeated what is in the Bill? There is much that we could learn about improving them as we go forward.

Mr. Stringer

I am not aware of those examples, although I would be prepared to examine them and to respond to them.

The freedom is there to use techniques that cannot be used in Bills. The notes can explain the background to a measure; they can give worked examples; and they can explain difficult concepts by setting them out in different ways. All that makes the law easier to grasp. The notes are still in their infancy, but the initial reaction has been encouraging.

The next issue is the regular review of legislation, to which the Government give high priority. Such review is essential to change and modernisation. Without a change in the law, many policies could not be implemented. As my hon. Friend mentioned the Law Commission, which regularly reviews the law, I will not go into the detail of the programme that it undertakes.

The Deregulation and Contracting Out Act 1994 provides for the repeal of statutory provisions in the interests of deregulation, by an order made after consultation and after parliamentary consideration of the proposal. As hon. Members will know, the Government will be bringing forward legislation to widen the scope of this power.

My hon. Friend may feel that more could be done, and I would not disagree with him in principle. However, parliamentary and departmental resources are always at a premium, and the price of more weeding out of obsolete law would be the sacrifice of new legislation, which is often needed urgently.

My hon. Friend spoke of the need for gender-free language in legislation. I congratulate the good burghers of Milton Keynes on having public houses that are free of sexist language. I look forward to visiting Milton Keynes to witness this extraordinary phenomenon.

The issue is covered by section 6 of the Interpretation Act 1978, which ensures that courts and others give legislation a gender-free interpretation, whether or not the words in the legislation are gender free. If "he or she" is meant, that is how the Act will be interpreted, whether or not the text of an Act uses "he" or "she". Users of legislation, whether they are men or women, have not found the convention confusing. The use of "he or she" and other phrases to overcome the objection to the use of "he" alone adds a complication which is bound on occasion to make the meaning of a provision less easy to ascertain.

As my hon. Friend suggests, there will frequently be ways round the problem, such as the repetition of a noun or the use of the plural, or the use of an alternative gender-neutral word, where one exists. It is inevitable, however, that there will remain some occasions when a provision will be less simple, and therefore less clear, if the drafter must take account of objectives other than legal accuracy and clarity.

Let me offer an example. The Public Interest Disclosure Act 1998 inserted a new part into the Employment Rights Act 1996, to protect workers from detriment when making a disclosure which is in the public interest. Section 43G(2) includes the words: that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer". If "he" is replaced with "he or she", the provision reads: that, at the time he or she makes the disclosure, the worker reasonably believes that he or she will be subjected to a detriment by his or her employer if he or she makes a disclosure to his or her employer". That is less clear, if non-sexist. The use of masculine pronouns could be avoided without loss of simplicity by using feminine pronouns instead. I do not know whether all those who object to the present system would regard that as satisfactory, but from the drafter's point of view, it would be equally effective.

Clarity is enhanced if the policy underlying legislation is straightforward. The Human Rights Act 1998 has been praised for its clarity. It represents legislation in a new field where there was no accumulation of statute and case law that the drafter had to take into account. However, legislation on a complicated topic is bound to be complex.

Even for simple policies, the law sometimes has to be set out in considerable detail. As the Renton report stated in 1975: the draftsman— the word "draftsperson" could have been used in 1975— must never be forced to sacrifice certainty for simplicity, since the result may be to frustrate the legislative intention. An unfortunate subject may be driven to litigation because the meaning of an Act was obscure which could, by the use of a few extra words, have been made plain. My hon. Friend asked why there was so much detail in legislation, especially in statutory instruments. There are two elements to the answer. First, there is a need for certainty in legislation, even if that means detail. Leaving matters to be decided by the courts on the basis of broad objectives would mean that people could not know, perhaps for many years, how legislation applied to their specific circumstances. Secondly, much of the detail in statutory instruments covers administrative matters, which it would not be reasonable to expect courts to decide. For example, when a permit scheme is established, it would not be sensible to expect the courts to determine what information an applicant should provide.

The explanatory notes that I mentioned in the context of purpose clauses are also a step forward in making legislation easier to read. Explanatory material cannot be included in legislation without the risk of affecting its meaning and giving rise to arguments in the courts. However, the explanatory notes that accompany Bills and Acts make them far easier to understand.

Before leaving the topic, I want to respond to the comparisons that my hon. Friend made between the Freedom of Information Bill and similar measures in Australia and Ireland. Clause 10 appears more complicated because it grants a right of access to information recorded in any form rather than simply to specific documents or records. The provision not only lists the forms in which information may be provided but sets out rules for deciding whether the public authority is obliged to provide access in the form requested by the applicant. For example, it establishes rules to determine whether the public authority can insist on providing a photocopy when the applicant wants the information on disk. The Irish and Australian Acts also contain rules for the same purpose, but they appear later in the measures and my hon. Friend did not quote them. A true comparison with Australian legislation requires examination of section 20 in the Australian measure, which runs to a page. Our clause 10 is more compact, more conveniently arranged, and thus easier to follow.

It is because of the importance of the issues raised by my hon. Friend that I have gone into so much detail. The issue can be expressed quite succinctly: the essential need in legislation is law which is certain and which delivers the policy intention that underlies it.

Question put and agreed to.

Adjourned accordingly at five minutes past Eight o'clock.