HL Deb 14 March 1928 vol 70 cc450-64

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Viscount Peel.)

THE EARL OF DONOUGHMORE

My Lords, I would ask your Lordships' indulgence while I refer again to the point to which I made reference on the Second Reading of this Bill, in regard to Clause 5, in which it is enacted that copies of the principal Act, printed under the authority of His Majesty's Stationery Office, after the direction takes effect may be printed in the form provided. I desire to acknowledge the courtesy of the noble Viscount in communicating with me and for allowing those with whom he is associated to discuss this matter with those with whom I am associated.

My position is this. This clause follows the Patents and Designs Act of 1919 and follows also the practice which is usual in the Army Annual Act. But there is another form which was at the back of my mind, though I did not refer to it, when I dealt with this matter on the last occasion. It is in the Government of India Act, 1919, which was passed in the same year as the Patents and Designs Act, which this Bill follows. It brings about the same result though in a different way. It enacts that a copy of the Act embodying the amendments made in the previous Act shall be referred to and certified by the Clerk of the Parliaments and deposited with the Rolls of Parliament, and His Majesty's printer shall then print it. That, I understand, is the form which is followed in the Naval Discipline Act; so that in this matter your Lordships will see there is a difference between the two services. My personal opinion would be that the same form as that in which the certificate is made by the Clerk of the Parliaments is preferable to the other; but I do not wish to press the matter in this present case, being satisfied that it is entirely in the mind of His Majesty's Government and of those who act under their direction in the drafting of these Bills.

THE FIRST COMMISSIONER OF WORKS (VISCOUNT PEEL)

My Lords, I am much obliged to the noble Earl the Lord Chairman for having discussed this matter. As he has said, there are several precedents and it is his view that we have not, perhaps, adopted the best precedent in this case. I quite agree with what he has said about the precedent to which he has drawn attention and I shall certainly be very glad to discuss the matter with those who are chiefly responsible for these mysteries. I can only say that I believe there was some idea of economy. "May" instead of "shall" indicates in many cases that the amended copy was not required and therefore no specific direction was given to the Stationery Office to reprint the Bills seeing that they might not be required. If they were required then they would have to reprint them in the new form.

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Amendments of ss. 7, 8 and 11 of the principal Act.

1. For the purpose of substituting references to the date which a patent would bear, if granted, for references to the date of application for a patent, the following amendments in the principal Act shall be made:— (1) In subsection (1) of section seven, for the words "published before the date of the application" there shall be substituted the words "published before the date which the patent applied for would bear if granted," and for the words "next before the date of the application," there shall be substituted the words "next before such date":

LORD PARMOOR moved to omit paragraph (1) and insert:— Subsection (1) of Section 7 of the principal Act is repealed and in place thereof the following subsection shall he substituted: (1) When an application for a patent has been made and a complete specification has been left, the examiner shall in addition to other enquiries which he is directed to make under the principal Act, make a further investigation for the purpose of ascertaining whether the invention claimed has been wholly or in part claimed or described in any specification (other than a provisional specification not followed by a complete specification) published before the date which the patent applied for would bear, if granted, and left pursuant to any application for a patent made in the United Kingdom within fifty years next before such date.

The noble and learned Lord said: I am seeking to raise here in a concrete form—and I shall go to a Division, if necessary it depends on what the noble Viscount says—the evils which have been noticed so often in this House of drafting by reference. In the present case, although I have only taken one illustration of it and that where it first arises, I think the illustration is a very bad one. I recollect, as Chairman of a Committee to which the Patents and Designs Bill brought forward by the late Lord Moulton, then Mr. Fletcher Moulton, was referred some years ago in another place, how difficult it was to make matters of this kind clear—which is the duty of the Chairman.

If your Lordships have the Bill before you, you will see drafting by reference in the first paragraph:— In subsection (1) of section seven for the words 'published before the date of the application' there shall be substituted the words published before the date which the patent applied for would bear if granted'… Then there is a certain substitution for other words. No one can really understand what is implied in drafting of that kind. I think it is essential that we, as a revising House, should insist on the drafting being put into a better form. I do not know whether any of your Lordships have the form of my Amendment, but it is extremely simple. There is no reference whatever. This is to be substituted for the paragraph:— (1) When an application for a patent has been made and a complete specification has been left, the examiner shall in addition to other enquiries which he is directed to make under the principal Act, make a further investigation for the purpose of ascertaining whether The invention claimed has been wholly or in part claimed or described in any specification (other than a provisional specification not followed by a complete specification) published before the date which the patent applied for would bear, if granted, and left pursuant to any application for a patent made in the United Kingdom within fifty years next before such date. I suggest to your Lordships that that paragraph is drafted in the proper form. There is not in it any drafting by reference. Any one with that before him and reading it in the ordinary way can see what the Legislature really intends, whereas it is utterly impossible, in drafting by reference, to appreciate the various Acts of Parliament so drafted. Even if you have a library by you it is extremely difficult, and the ordinary man has not a library. When you have a library it is a matter of considerable research.

Although my Amendment is perfectly clear it took me some time to go through the various Acts and references before I could arrive at what appeared to me to be the simple meaning. If the noble Viscount (Viscount Peel) says that I have mistaken the meaning, that can be put right, but I think that he will agree with me that the form of drafting which I have adopted is an ordinary use of the English language and carries out directly what is intended to be carried out by the reference in the drafting of the Bill as it stands. This is an important matter. I think the present conditions of drafting are really scandalous—I do not think I use too harsh a term. And that is not the only important consideration. I think every one of your Lordships at one time or another has objected in this House to this form of drafting by reference, but we have had to put up with it. In very many cases Bills are introduced here at a late stage of the Session and in some cases it is said that it is not possible under the conditions to get the drafting corrected. But it is possible to do it now. There is no hurry and if your Lordships would carry my form of drafting, or if the noble Viscount would assent to it, the proper course would be to move the adjournment of the debate in order that the rest of the clause may be put in the same form. There is no difficulty about it. The process which I have applied to this paragraph could easily be applied by any draftsman to all the clauses if your Lordships would once make up your minds that we ought to put an end to this drafting by reference, which, instead of making Acts of Parliament intelligible, make them wholly unintelligible.

I noticed the other day that at a meeting of the Association of Retail Distributors there was a discussion upon this legislation by reference. I have an extract from the Manchester Guardian of a report of that meeting. Those present made a strong protest against the growing practice of legislation by reference. It is a growing practice and a recent practice and a thoroughly bad practice. In a reference to Sir John Simon, it is stated that he had made a remarkable speech in which he drew attention to the inconvenience of legislation by reference, which means that the provisions of a new Bill cannot be understood except by reference to those of the earlier Acts on the subject. That is what we mean by drafting by reference. The statement goes on:— The complexity of legislation by reference necessitates the constant employment of lawyers I want to go a little further than that. I am often asked in my home life about the very complicated series of Acts which regulate the relationship between landlord and agricultural tenants. I am obliged to say: "I cannot give you any surety; there is a reference from one Act to another and it is impossible to say what the true meaning is." They then state: "We are very sorry for that, because we have been to the local lawyer and he has given it up altogether. What are we to do?" I tell them: "The only thing to be done is, if we can, to get rid of this form of drafting, which is really indecent drafting, and to make the law intelligible instead of putting it in this referential form."

The report of the meeting to which I have already referred goes on to state that it was hoped that legislation will be passed in such a form as to make reference to preceding legislation unnecessary. Here is an opportunity. Will your Lordships decide once for all that this drafting by reference in a case like this is not right? Here you have a new drafting, which I took the trouble to make and which is without reference and is perfectly simple and intelligible. It might just as well be put into the Bill, for it would make it so that the ordinary man could read and understand it whereas at the present time he cannot do so. An argument in support of this method of drafting by reference was put forward the other day by the noble Viscount (Viscount Peel). I believe in his heart he agrees with me that drafting by reference is undesirable. I think I have heard him say so on several occasions. The noble Viscount, in the argument to which I have referred, stated that in the House of Commons, if you put in the whole of the new provision you were desirous of attaining instead of doing it by reference, that might cause delay. I think that was what he stated the other day. I doubt that. But assuming that it is so, is that any argument why our law should be promulgated in this form, in unintelligible language? I think there can be no excuse for that and, therefore, subject to what the noble Viscount says, I shall trouble your Lordships to divide on my Amendment. It is not an Amendment to the meaning of the Bill but an Amendment which makes the Bill intelligible and puts an end to drafting by reference. I beg to move.

Amendment moved— Page 1, line 20, leave out paragraph (1) and insert the said new paragraph.—(Lord Parmoor.)

VISCOUNT PEEL

The noble and learned Lord has redrafted a portion of this clause and has incorporated, I understand, a previous clause so as to make the whole thing run as one and to make it more intelligible to your Lordships. The noble and learned Lord suggested he might be mistaken in the drafting. I am the last person to suggest that the noble and learned Lord could have made a mistake in his drafting, and I am perfectly ready to accept the drafting as he has put it on the paper. I am rather sorry that he held the threat over my head—twice I think—of a Division. Evidently he did not anticipate the very conciliatory nature of my reply. If he had done, I think he would have held in the background the danger with which he threatens me, and would have treated me as a friend, and not as a potential enemy.

LORD PARMOOR

I regret it.

VISCOUNT PEEL

The noble Lord has raised a very large question, and I am sorry that the ranks of your Lordships are rather depleted this afternoon, so that full justice cannot be done to it. As he says, we all of us, even the most pertinacious, industrious and ingenious of us, find some difficulty in looking through past Acts of Parliament and attempting to discover what the remarkable hieroglyphics that are set down in Bills really mean. I think we have very often cause for irritation, probably when, owing to the arrangements and pressure in another place, we have to deal with these very complicated measures, and have comparatively little time in which to do it. If we had more time we should probably enjoy the process of hunting up these previous Acts and fitting together the pieces of the puzzle. It would be a very pleasant, though possibly a difficult and ingenious operation.

I want, however, to suggest to the noble Lord that this question of the method of drafting Bills is really a very large matter. I would prefer that it should not be tested on a comparatively small Bill without full notice being given to members of your Lordships' House that the question was to be discussed. I have discussed this question with those competent in such matters, as I promised the noble Lord I would do, and I find that the revolution which would be effected would be very considerable. I am informed that not less than 70 per cent.—it is a rough estimate, but I think it is fairly correct—of the Bills that come before your Lordships and that come before another place, are amending Bills to other Acts. In about 70 per cent. of the Bills which come before us, all the sections in the previous Acts, which are affected or amended by the Bill, would have to be set out in full. That, of course, would mean a very considerable lengthening of the Bills when they come before your Lordships. Less than 30 per cent. of the legislation which comes before your Lordships is of what I may call an original nature. We are working for seven-tenths of our time on trying to bring old Acts up to date, or to improve them in the way that experience shows they need to be improved. Only 30 per cent. of the Bills are new measures. While, of course, it is possible to draft Bills in the way suggested, they would be very long Bills, very often. I will take as an example the Companies Bill which was introduced last year. If you had had set out all the sections in previous Acts amended by the Companies Bill, you would have had, I am advised, a very massive tome to deal with. That consideration, I think, has to be weighed.

The noble Lord rather anticipated, I think, one point to which I am going to refer, and that is, the procedure in another place. The noble Lord knows very well that members of your Lordships' House are much more abstinent in the number of Amendments they move than are the members in another place. If the whole of these sections in previous Acts had to be set out, it would be possible for any one who did not like the Bill, or who objected to some Bill coming after it, to move a number of Amendments on these sections. The noble Lord may brush that aside and say that it is a matter of small moment. It makes, however, an immense difference in our rather narrowly restricted Parliamentary time. It may be right to overrule that objection, but I would suggest that if it is to be overruled, it should be done on a considered Motion, when the whole matter and its effect on drafting could be considered. I rather deprecate the test being taken on a narrow basis as would be the case if we accepted the proposal of the noble Lord to-night.

He said that there was no urgency in this case. I have so often spoken in this House on the subject of urgency that I do so now with some reluctance, but I am afraid there is an urgency about this Bill. The noble Lord knows that if his Amendment is passed—and it is no more than a drafting Amendment; he does not pretend otherwise—the Bill would have to go back to another place. Time is rather restricted, because, as the noble Lord knows, this Bill is intended to bring the law of this country into harmony with a Convention which has been signed with thirty-seven other countries. The time of ratification, I believe, is May 1. That is a few weeks ahead, but I understand that in the Foreign Office these processes take a certain time. I do not know whether it is a matter of one week or two weeks, or what it may be, but I do think it is rather urgent that this Bill, the substance of which the noble Lord entirely approves, should be passed as soon as possible. I sympathise very much with the noble Lord in the point which he has raised, and as I was very anxious to do what I could to meet him I have arranged that a White Paper shall be placed on the table of your Lordships' House—I think it will be ready to-morrow—showing the sections of the previous Act and the amendments which this Bill would make in them. Therefore it would be possible for your Lordships, at least—I do not say for the general public—to study the whole matter.

I do not know whether that will meet the noble Lord, but I sympathise very much with what he has said, and I was very anxious to do what I could to meet him. What I would suggest is, that he should not press the Amendment to-day, but that he should see the White Paper and then, if he thinks it necessary to move an Amendment on Third Reading—which I would undertake should not be taken before Tuesday—he would have ample time. I hope that that will meet him. I have done my best to meet hint. As regards the general public, this Bill, as the Lord Chairman has said, will be printed when it becomes an Act with the changes made in the old Act. The members of the public, therefore, will not be damnified, because they will be able to get the Act with the amendments at the Stationery Office. So far as your Lordships are concerned, the suggestion I have made may possibly meet your wishes. Anyhow, I have been very anxious to meet the noble Lord, and I have done all I can. I do not want the passage of the Bill to be delayed because of the necessity for ratifying the Convention as soon as possible, and I hope I may appeal to the noble Lord to withdraw his Amendment.

LORD BANBURY OF SOUTHAM

The noble Viscount has made a suggestion which possibly may be acceptable to the noble Lord opposite, but I do not know if I understood him aright as to how the public will stand if this Bill is passed as it is drafted. How will they find out what the references mean? What I would like to see is that in all future Bills, not only your Lordships, who can go to the Library and find out what the references mean, but the members of the public, when they look at Bills, will be able to ascertain what is meant by a particular Bill, without having to go to some lawyer or to some public library to look up all the various references which will explain the meaning of the Bill. I am not sure whether I quite understood my noble friend as to whether something was going to take place afterwards which would inform the public.

VISCOUNT PEEL

Yes. This is an amendment of the Act of 1919, and when this Bill becomes an Act the previous Act of 1919 will be printed, with the amendments made in it by this Act.

LORD BANBURY OF SOUTHAM

Is it a sort of Consolidation Act?

VISCOUNT PEEL

It will be made clear.

LORD BANBURY OF SOUTHAM

That, I think, is something, and I am glad to hear it. I agree, for once, with the noble Lord opposite that we really ought to do something to ensure that this habit of legislation by reference is discontinued. My noble friend says that longer time would be taken in the House of Commons. Is that quite certain? Supposing there is somebody in the House of Commons who desires to waste time—I do not think there is—there is nothing to prevent that person going to the Library and looking up all the references and then framing his Amendments. I think I know of such a thing having actually been done. In those circumstances you do not waste time. There is something, I think, at the bottom of the desire of all Governments—for all Governments are the same in this—to legislate by reference, and it is that the bulk of the members of the House of Commons do not take the trouble to go to the Library and do not in the least know what the Bills mean and, since they do not know what they mean, they are more likely to pass something which, if they know what it meant, they would not pass. I do not think that this is a practice which the Conservative Party ought to encourage, and since the noble Lord opposite has taken this matter up—I do not know whether his supporters agree with him—I hope that my noble friend will mention it in the appropriate quarter.

EARL BEAUCHAMP

I must confess that I feel that, if ever your Lordships are to take a stand in this matter of legislation by reference, this is the moment. I do not know when a Bill has been prepared in such a way as to include so many references as this Bill. I notice that there are no fewer than thirteen cases in the first two clauses alone in which references are made to other Acts, and not only is that so but I see that Clause 3 is prepared in exactly the same way as the noble Lord proposes in this Amendment that this particular section should be amended—that is to say, the whole clause is repealed and the new one is inserted in the new Bill. This seems to me a much more convenient method, and in those circumstances I venture to hope that the noble Lord will press his Amendment. I confess that it is not very often that I wish for the presence of more lawyers in your Lordships' House, but I think upon this occasion it might have been well if we had had more of them here in order to tell us the opinion of the legal profession with regard to this legislation by reference. I am not, I am afraid, in the least impressed by the reference to want of time. Governments can always make time. We have so often heard pleas of this sort addressed to your Lordships' House by the Government that they leave me quite unmoved. I hope that the noble Lord will go to a Division and, if he does so, I shall have the pleasure of following him into the Lobby.

LORD PARMOOR

I acknowledge the courtesy of the noble Viscount opposite and I am sorry that he thought I had threatened him in my earlier speech, but I am afraid I am unable to accept his suggestion. We are really confronted with a bad principle, and it is a very convenient time to have the matter settled so far as this Bill is concerned. I know about the Convention that he mentioned, but there will be no difficulty whatever in getting this Bill through by the time stated. The noble Viscount will bear in mind that, when I raised this point on the Second Reading, I intimated my intention of bringing the matter to a decision on this Bill. Accordingly I propose, not to withdraw my Amendment, but to proceed with it.

VISCOUNT PEEL

I am sorry that I cannot persuade the noble Lord to withdraw. If this were anything but a Bill to ratify a Convention made with thirty-seven States I would certainly give way at once and accept the Amendment. It is only because it has been so much pressed upon me that in this particular case there may be some danger, since there is a fixed date before which ratification must take place, that I shall not do so. That is all that I can say. I entirely sympathise with most of the observations of the noble Lord, and I think I really did my best to meet him by this method of a White Paper. I think he recognises that. I am afraid that I cannot conclude the same regarding the noble Earl, Lord Beauchamp, who did not allude to my humble effort in that respect. I really do not like to take the responsibility at this stage of sending the Bill back to the House of Commons. If your Lordships wish to divide you are, of course, entitled to do so. All I can say is that I have warned your Lordships and I have done my best. The whole responsibility for losing this Bill and the Convention must rest upon your Lordships. You must take that responsibility. I have done my best for the Bill.

EARL BEAUCHAMP

I think it is hardly right to throw this responsibility upon your Lordships because, after all, if His Majesty's Government had been so anxious they might have given us more time in which to consider this Bill. In regard to the reference which the noble Viscount made to me, I did not say anything about the White Paper because I did not feel that it would really assist the great public to whom this matter is of interest. It is of great value to your Lordships' House, but the people outside this House who have to deal with the interpretation of the law would not really be assisted by the White Paper in the same way that we should be.

VISCOUNT PEEL

I explained to the noble Earl that your Lordships might be assisted by the White Paper and that it does not affect the outside public at all, because the Act, which is being amended, will be printed with the changes made

in it, and therefore the whole matter, so far as the public is concerned, will be in exactly the same position whether the Amendment is passed or not. Do not let your Lordships go away with the idea that the public will suffer in any way. I admit that it is a very important question, but it is one of the convenience of your Lordships in understanding the Bill. That was the purpose of the White Paper which I promised for to-morrow. I am sorry that this has not met the requirements of your Lordships. I do not think it is unfair to suggest that the responsibility must obviously be with your Lordships if there is any danger to the ratification of this Convention.

LORD PARMOOR

I cannot think that there is the slightest danger. I know about the Convention and the procedure in connection with it, but there cannot be any danger. The whole question is whether we are to have an Act of Parliament which is understandable and which can be read by people with a fair knowledge of the English language who want to know what it means. I think that I shall have to press my Amendment.

VISCOUNT PEEL

I am sorry to have to rise again, but I want to make it quite clear, if I have not done so, that there is no question as regards the public. The public will have that Act perfectly clear before them. They will have the Act printed with all the changes made in it, and accordingly all these lawyers and solicitors and other people to whom the noble Lord referred with so much sympathy will be in exactly the same position, whether the Amendment be carried or not. They will not suffer at all. Therefore your Lordships must not go away with the idea that the public will suffer in any way. The whole point is with regard to your Lordships, and that I have tried to meet.

On Question, Whether paragraph (1) shall stand part of the clause?

Their Lordships divided:—Contents, 20; Not-Contents, 17.

CONTENTS.
Sutherland, D. Cranbrook, E. Peel, V.
Ivreagh, E.
Bristol, M. Lucan, E. [Teller.] Lincoln, L. Bp.
Onslow, E.
Airlie, E. Plymouth, E. [Teller.] Bledisloe, L.
Gage, L. (V. Gage.) Kylsant, L. Sinclair, L.
Lamington, L. Templemore, L.
Glenarthur, L. Merrivale, L. Wharton, L.
Greenway, L.
NOT-CONTENTS.
Beauchamp, E. Hutchinson, V. (E. Donoughmore.) Gainford, L.
De La Warr, E. [Teller.] Northington, L. (L. Henley.)
Liverpool, E. Olivier, L.
Arnold, L. Parmoor, L.
Allendale, V. [Teller.] Banbury of Southam, L. Stanley of Alderley, L. (L Sheffield.)
Bertie of Thame, V. Clwyd, L.
Haldane, V. Fairfax of Cameron, L. Thomson, L.

Resolved in the affirmative and Amendment negatived accordingly.

Clause 1 agreed to.

Remaining clauses agreed to.

Bill reported without amendment.

House adjourned at twenty minutes before six o'clock.