HL Deb 17 December 1952 vol 179 cc1061-74

Debate resumed.

LORD SCHUSTER

My Lords, I trust that the noble Lord, Lord Silkin, will forgive me if I do not follow very closely the observations which he has made to the House. When I saw his Motion on the Order Paper, I had not realised that he was intending to talk, as he has talked, about the powers of the Special Orders Committee, although it is very desirable and right that they should be both talked about, discussed and disposed of in some way or another. On the other hand, I do not wish particularly, as your Lordships may suppose, to embarrass Her Majesty's Government by anything that I am going to say. What I am about to say will, I hope, embarrass all Governments, and induce them to change their heart and their manner of proceeding.

I take as my text the order to which the noble Lord, Lord Silkin, has drawn attention, and two orders relating to designs, trade marks and patents which were discussed the other day. When we drew the Lord Chancellor's attention to that latter order he at once recognised the justice of our complaints and generously gave us as full a promise as we could have expected that the matter would be remedied in the future. The order about police pensions, however, is not capable of being disposed of in that way. I wish to call your Lordships' attention very closely to the circumstances in which it was presented and to its content. It was presented in such a way that nobody could possibly make out what it meant. The noble Earl the Chairman of the Committee, with great labour and with the skilled assistance at his command, succeeded in explaining to the Special Orders Committee more or less what its general purport was. But no living being without professional assistance, and very few living beings with professional assistance, could possibly determine what the order is all about, and certainly not what it effects. It was presented to us with a statement that, whether we understood it or not—and we, poor fish! could not possibly be expected to understand it anyhow—unless we gave it our assent before Christmas, some third party would suffer. I wish to use strong language, and I regard that as legislative blackmail, and the worst form of blackmail. It means that extortion is used upon one person, and that unless he yields the punishment falls upon a perfectly innocent third party. I cannot understand any reason whatever for attempting to justify such a Parliamentary method. It is a very unfortunate thing.

Secondly, as to the form of the document, the order itself, many defences are put forward in its support. First, it is said that documents of this sort have to be in legal language. That is a doctrine which I wish to repudiate with all the force at my command. Legal language is that language which expresses most concisely, most clearly and unambiguously the design which the draftsman has in mind, according to the instructions which he has received. There is not the least reason why the creation of obscurity should be excused by saying that there is some legal reason for it. It is perfectly true that there are certain legal instruments which—having their origin, for the most part, in times when the languages used were Norman French or Latin—can be expressed only in some kind of legal jargon. That is equally true of certain kinds of scientific matters. I know that I could never understand them, and I shall never understand the terms in which they are put. But on the question of whether certain sums of money should be paid to the widows of policemen, at certain times of the year, on the fulfilment of certain requirements, there is not the slightest reason for the use of anything but plain language, arranged in a plain way, so as to convey to the mind of the reader exactly what is intended. Then, it is said that regulations about pensions and allowances are very difficult to express. That reason is given to me by people of great experience—people whose opinion I deeply respect. I am sorry, therefore, to have to say that I cannot accept it. One must not allow oneself to be bemused by statements that matters of this kind cannot be expressed in English. If one does so, one is led to the conclusion that the person who is trying to express them really does not know what he is trying to express. Those two reasons, I know, are given in all good faith as applicable to badly drafted regulations.

Other reasons, however, are given, and were given before the Special Orders Committee, which appear to me to be of a more sinister kind. I have here an extract from the Minutes of Proceedings before the Special Orders Committee. I should like to read it, but before doing so I desire to make an apology to the noble and learned Lord the Lord Chancellor. I had supposed that the noble Lord, Lord Lloyd, would reply to this debate, and I had sent him a copy of what I was going to read—though, I am sorry to say, apparently it never reached him. I have not had an opportunity of sending a copy of the document to the Lord Chancellor, and I hope he will pardon me—I will hand it to him afterwards. This document mentions a gentleman whose name I will not repeat, because I should appear to be holding him up particularly to blame, which I am not doing. I have known him and worked with him for many years, and I know him to be a most efficient and well-thought-of servant in his Department. What he said was this: Perhaps I should also draw your Lordships' attention to the fact that these are very much what one might call expert administrators' regulations. They are not the type of thing supplied to every single citizen throughout the land, they are Regulations which are administered by police authorities who will keep up-to-date copies, presumably, posted up; that is on the administrative side, and on the policeman's side the policeman is represented by what one might call his trade union, who have, equally, a number of people who are very well able to trace these Regulations so that, perhaps I would suggest to your Lordships that it is rather less serious that they should be difficult to follow than it would be if the Regulations were of universal application. The Chairman said: You see, we have to follow them in Parliament, too, as far as we can, which makes it very difficult. I said: They have got to be interpreted not only by the authorities but also by the people who receive the pensions. How are they going to find out without wading through volume after volume and spending a great deal of money and a great deal of time? I think the worst answer that can be given on a regulation is to say that a Department understands all about it and it does not matter about everybody else. Then this gentleman to whom I have referred added: I attempted to cover that by saying that at the receiving end as well, the policeman's trade union looks after the pensioner as opposed to the local authority, which is the party paying. Incidentally, the police have no trade union. In the second place, the ordinary citizen, and perhaps the paying authority, is being told in effect "Just accept what you are told and keep your mouth shut." How is he to know whether that is right or not?

This gentleman of whom I am speaking went on: I am offering that as an excuse. These are complicated Regulations, anyhow, and the people who generally use them, I hope, are people who would understand them. I did not suggest that they ought to be obscure. I said: Obscurity is an end in itself, apparently. He replied: … I said 'I hope.' I did not intend to suggest that they were intended to be obscure or properly obscure. I said: You surely agree this is obscure, do not you? He replied: Yes, I think it is very difficult not to be obscure in Pensions Regulations, anyhow. Now, my Lords, if we are going to have regulations put before us, as in the present case, which cannot be understood by Parliament or by the Special Orders Committee (who have special help from the Chairman and from his advisers), and which cannot be understood by the people principally affected, that is to say by those who are to be the recipients of the pensions, then the whole regulations power will fall into complete disrepute. It is a very popular piece of machinery, this power of regulation. I have always regarded it as a very valuable cog in the machinery of Government. Indeed, in these complicated days I do not think we could get on without this piece of machinery; I do not think that Parliament could possibly deal with all the details of so many legislative enactments. But if that power is to continue to be entrusted to the various Government Departments it must be exercised by them in good faith—and I suggest that these regulations are not made in good faith. In the the first place, they are thrown before us in such a form that we do not understand them, and in such a form that the recipient cannot understand them; and that puts this piece of very valuable machinery almost in such a condition that it will not be possible for it to be used in the future.

Noble Lords may say, "Now that you have fired off this diatribe on this procedure, what have you to suggest in its place?" I say frankly, my Lords, that I have nothing to suggest. We have thought about this matter. If I may introduce a personal note, I myself thought about it deeply for a great many years before the Donoughmore Committee was set up. We discussed it on that Committee and it has been discussed ever since; and the answer is that there is no cure except a deliberate intention on the part of those to whom this power is entrusted, within their limits, to ensure that everyone shall understand what is said so that there shall be no further encroachment on our present liberties and no more petty tyrannies added to those under which we are living at present. On the other hand, this House and the other place, and the Special Orders Committee, should be eternally vigilant. All that the Special Orders Committee could do in the two particular cases I have mentioned was to call the attention of Parliament to the wording of these regulations. This House, on both occasions, was almost forced to disregard the form and nature of the regulations and to pass them because paramount considerations intervened. But this sort of thing cannot happen in the case of future Reports from the Special Orders Committee. This was a very moderate Report. I fear that if I had had the drafting of it it would have been far more violent and bitter in character. This is a matter of very great constitutional importance, and I am sorry that it should be discussed in the last two or three days before Christmas, and in a small House. I am sorry too, that my voice should be the only one raised after that of the noble Lord, Lord Silkin, to ask your Lordships to consider the matter. I entreat your Lordships to remember how important this matter is, and how necessary it is that we should be vigilant.

3.50 p.m.

EARL JOWITT

My Lords, it is seldom that I find myself in the happy position of agreeing with every word that the noble Lord, Lord Schuster, says; but I do so to-day, and I feel great confidence in the fact that we do agree. I also agree with what the noble Lord, Lord Silkin, said in his most interesting contribution. I do not think I am speaking now from the point of view of one side of the House particularly. Your Lordships may say, having regard to my past record for the last six or seven years, that this is a case of Satan rebuking sin. It may be, on the other hand, merely a case of (as an illustration) a poacher turning gamekeeper, and being very often a very good gamekeeper. I think we should see that this sort of thing does not happen again. I suggest that the only way we can make sure that it does not happen again is by declining, at whatever cost, to pass the offending regulation. As the noble Lord has just said, it is not a matter of the substance of the regulations; it is a matter of the form. The principle at issue, as noble Lords on all sides of the House maintain, is that when this House is asked to pass a regulation, an ordinary intelligent reader, on reading the regulation, ought to be able to know what it is about. I hope that in future, if an ordinary intelligent reader cannot make out what it is about, then, at whatever cost, the House will say definitely, "We will not pass this regulation." I will warrant that, if we accept that principle, your Lordships will find that the drafting of these regulations will improve beyond all recognition.

I am not making the smallest attack upon the noble Lord, Lord Lloyd. He had to give us the advice which he had received, and he gave us the advice which he had received. I refer to this passage at Column 824 of the OFFICIAL REPORT of December 9 last. This is what the noble Lord said, summing up the advice he had received—I am reading from nine lines down the page: My advice is, therefore, that we have no vires to effect a consolidation of this kind. It would not be possible to consolidate the regulations in so far as they apply to existing pensions. With regard to that first statement, we have no vires to effect a consolidation of this kind. I desire to say as emphatically as I can that I believe that to be absolute non-sense. I suggest that that advice ought never to have been given to the noble Lord. If you have a power to write in "January" for "October" in this sort of way, you most certainly have power to set out the regulation with "January" instead of "October" so that people can understand it. With the greatest respect to the noble Lord—I am not blaming him—there is absolutely no question at all of vires about this. You are not seeking to do anything different in the two cases. All we are asking is that it should be done clearly and intelligibly.

3.54 p.m.

LORD LLOYD

My Lords I do not want to shelter behind the advice that I was given: I may have misinterpreted it. But that was how I understood it. It is a very complicated matter, and I think that the noble and learned Lord on the Woolsack will explain to the House the difficulties (for there are difficulties still) about this question of the Pensions Regulations. In that passage, I may legally have expressed myself incorrectly. If I did, I apologise to the House; but, in certain respects, there is no power to destroy or tear up existing regulations. My noble and learned friend will, I think, explain that later on. I do not want those who advised me to appear to he wrong about this, because it was a complicated legal matter and I may not have expressed myself clearly and correctly in that passage.

EARL JOWITT

I certainly do not hold the noble Lord in the least to blame, but anybody who told the noble Lord to get up and say that consolidation was impossible, simply like that, was, to my mind, making a really misleading statement, because it is so absolutely incomplete.

If I may give the simplest illustration possible, take the law dealing with the roads of this country—we had a case of this kind recently. In that law you will have to deal, in one category, with the trunk roads; in another category with the county council roads; in another category with the unclassified roads; in another category with another sort of road, and so on. You will find that each has its own particular section. I am not suggesting for a moment that in this particular regulation, which deals with certain classes of pensions, you can deal with all other classes of pensions; but there is nothing whatever—I assert positively, in my view, at any rate—to prevent a consolidated regulation dealing with each sort of pension in its own class. There is nothing whatever with regard to these regulations—

THE LORD CHANCELLOR

Is the noble and learned Earl referring to pensions which have accrued or to pensions which have not accrued?

EARL JOWITT

To either. If consolidation is necessary, you can deal with it. With regard to these pensions, no consolidation is necessary at all. You obviously cannot interfere at all with pensions which are now accruing, but you can set out your law plainly and succinctly, dealing in one chapter with pensions that have accrued and in the next chapter with pensions about to accrue.

THE LORD CHANCELLOR

The noble and learned Earl is dealing not with the consolidating of Acts but with the consolidating of regulations. I think that in what he has been saying to the House he has ignored that distinction.

EARL JOWITT

I do not admit that any such distinction exists. If you can consolidate Acts, so you can consolidate regulations, if they call for consolidation. I do not say that the regulations about existing pensions need to be consolidated. I do not know—I have not studied them. If they are to be found on various scraps of paper spread through the books—perhaps I may ask a rhetorical question of the Lord Chancellor—why cannot you consolidate those regulations, if they need it? I do not say they do, but I think it is plain that you can if you want to, or if there is need for it. I say that the bald, general statement which we were given by the noble Lord, on instructions and advice given to him, that no consolidation of these particular regulations, or of regulations generally, was possible, was entirely misleading. It would have been easy—at least an expert draftsman could have done it—to say, "In place of regulation so-and-so" (that is, a regulation of 1949, amended in 1951) "the following regulation shall have effect"; and there set out, as we have done in some of our recent Acts, something which "he who runs may read" and understand. That was not done in this case. I am not concerned to make a great "song and dance" about it, save to say that I hope that the whole House will support me, if ever regulations appear again in this irregular form, in demanding that the House shall just decline to pass them, and leave it at that.

Having had a very long experience of this matter, both in this House and in another place, may I say this to your Lordships? It is not infrequently said —I am afraid with some truth—that if you want to get this sort of thing through the House, you can sometimes get it through in this form just because people do not fully understand what you are doing, whereas you would have much more difficulty in getting it through if you set it all out at length. There may be some truth in that—I do not know—so far as another place is concerned; but let it at least be plain in the future that there is no truth in that so far as your Lordships' House is concerned. If you cannot get a thing through when it is set out plainly so that anybody can understand it, you should not be able to get it through at all. I quite realise the many difficulties that there may be. I quite realise, of course, that if you set out the whole thing in another place, you may enlarge the scope and ambit for question, and the scope of the debate will be enlarged. I realise that; but, so far as we are concerned, we have no trouble comparable with the trouble that I sometimes think they have in another place—though it is not for me to suggest that they have it. Here, however, we can afford to set the thing out quite plainly, and there is no reason why consolidation of this particular type of regulation—that is, the new pensions regulations should not be carried out.

I think we can all learn from our experience of this matter, and we shall learn usefully from the mistake which I venture to think was made in this case. It is by no means a unique matter. I have no doubt that in my time of office the same thing was done on many occasions. I am not blaming the Lord Chancellor any more than I am blaming myself. I am suggesting, just as I have indicated to your Lordships on the question of reform, that the whole House should reform in this matter, and that we should ask for a higher standard in the future than we have exacted in the past.

4.0 p.m.

THE LORD CHANCELLOR

My Lords, I am sure we are all at one in agreeing with what the noble Lord, Lord Silkin, said at the opening of his observations—namely, that we owe a great debt to the noble Earl, Lord Drogheda, and his colleagues, the members of the Special Orders Committee. With the rest of what the noble Lord said (I hope he will acquit me of any discourtesy) I must deal very briefly, for, indeed, I had not appreciated when I read the terms of his Motion that he proposed to raise any general question upon the powers of the Special Orders Committee. The same remark applies to certain observations of the noble Lord, Lord Schuster. That is a matter which, as your Lordships are well aware, we hope to investigate by a Select Committee of this House. The noble Marquess who leads the House sent me a message to-day, inviting me to say that he and I were in discussion about this matter and hope to approach your Lordships early in the New Year. Your Lordships know how many are his preoccupations at the moment. So, while I sympathise with a great deal that the noble Lords, Lord Silkin and Lord Schuster, have said, that is a matter which must be investigated by a Select Committee of the House, and I venture to hope that Lord Schuster will by then be in a more optimistic frame of mind. He said, I think, that there was nothing to suggest and nothing to be done. Let us hope that the joint efforts of the Select Committee may result in some better safeguard of our liberties. But I do not know whether I heard the noble Lord clearly. It was my fault; I had difficulty in hearing what he said.

As to the form of the regulation which gave rise to this discussion, may I say that I quite agree with some of the criticisms that have been made? The noble and learned Earl, Lord Jowitt, said, quite rightly, that the Special Orders Committee works for the benefit of the House as a whole, and we on all sides are indebted when our attention is called to a regulation which falls in any way short of the standard which we have been accustomed to demand. Perhaps one may say, not by way of justification or excuse, that the result of thirty years' experience of these statutory instruments leads one to expect a rather low level of intelligibility. By that, I mean a low level of intelligibility for the person who is not directly concerned with the regulation itself. I interpose that qualification because you cannot expect somebody wholly inexpert in a particular subject matter to take up a regulation and understand it. But I agree that those who are interested in the subject matter should be able to read and understand.

I am authorised by my right honourable friends the Home Secretary and the Secretary of State for Scotland, to say that they have given earnest consideration to the Report of the Special Orders Committee of our House; and I think your Lordships will appreciate that when I tell you that in an order called the Firemen's Pension Scheme (No. 3) Order of 1952 which has recently been laid before the House, they immediately took to heart the observations of the Special Orders Committee, and altered the draft so that in fact it conforms with the wishes of the Committee. I commend to your Lordships reading, for your Christmas Holidays, the Firemen's Pension Scheme (No. 3) Order of 1952.

Now so far as concerns another point to which the noble and learned Earl, Lord Jowitt, particularly referred—namely, the possibility of consolidation—I imagine that one thing that your Lordships least wish to hear in this House is a discussion upon an intricate legal problem between the noble and learned Earl and myself; but I do venture to say that he is, if not wholly wrong, at least not wholly right—and for this reason: that there is a substantial distinction between the consolidation of orders and the consolidation of Acts of Parliament. If a person (I will take as an example a police officer) has a right under a particular regulation, and under that regulation has a pension, so far as he is concerned the regulation under which he has that pension cannot be consolidated. For, of course, although we call it a consolidated regulation, it is a regulation made under the Statute which concerns him—at least, it purports to concern him. But already his rights are determined by the preceding regulation. Therefore it is quite right to say that, so far as concerns vires (that is the word the noble and learned Earl used), there is no vires to make a regulation concerning him by way of a consolidated regulation if his rights are already established under a preceding regulation.

EARL JOWITT

May I just intervene? I am said to be wrong and I think the House would like to know why I am wrong. I agree that you cannot alter the thing; but may I point out to the Lord Chancellor that the whole point of consolidation is that by consolidation you are not altering; you are merely putting into more convenient language the existing rights. I entirely agree with him in that.

THE LORD CHANCELLOR

Perhaps after all the House may enjoy a discussion on this matter. The noble and learned Earl says, "to put into more convenient language the existing rights." Well, who knows whether the art of the draftsman is such that a person's rights are the same under the consolidated regulation as they were under the original regulation? The difficulty of consolidation is the fact that you cannot reproduce with exactitude and certainty the rights which are established under the preceding regulation; and so I say (the noble and learned Earl may challenge it if he thinks fit) that, so far as vested rights are concerned, you cannot usefully consolidate regulations in the same way that you can consolidate Acts of Parliament. So far is that so, that if the noble and learned Earl will invite the co-operation of the Parliamentary draftsmen in this matter he will be told that they have not yet been able to consolidate the existing Acts dealing with Civil Service superannuation, simply because of the extreme difficulty of doing so.

I do not want to keep up this question of the possibility of consolidation, but it is a fact that you cannot consolidate regulations in the way that the noble and learned Earl suggests—by a stroke of the pen. So far from it being absolute non-sense (to use the words of the noble and learned Earl), I think the advice which was given to my noble friend, Lord Lloyd, was substantially the right advice. The noble and learned Earl dissents and I must be content that he does dissent; there is that difference between us. At any rate, I venture to say that I do not think that the able and experienced lawyers who advised the noble Lord ought to be dismissed in that way. I think the less so because, having spent some part of the morning listening to them, I agree with them. There it is. Let us leave it like that, but with this further word: that within a certain ambit, and subject to all proper reservations, some form of consolidation of such a regulation as this is possible. How far it is useful, is a different matter. Certainly after what the noble and learned Earl has said, that point will be considered; but it is not really an easy matter at all. It ought to be easier. I share entirely the noble and learned Earl's views upon this matter: it ought to be easier to make regulations more intelligible than they are. In particular, as I think, there ought to be no reference to regulations of a certain date simpliciter if those regulations have been amended. You ought to refer to the regulations, as amended by such-and-such other regulations. But this, of course, is a very complicated matter; and so, in an imperfect world, we shall have to try to do our best. As to the larger questions, as I have indicated from the beginning, that is a matter which must stand over until a future date, and it will be very useful when we come to that further discussion to have had the observations of the noble Lord, Lord Silk in, who initiated this debate upon it.

4.10 p.m.

LORD SILKIN

My Lords, I am sure we are all very much obliged to the noble and learned Lord on the Woolsack for his observations. This debate has done two things. It has brought us unearned dividends in the shape of a very illuminating discussion between the Lord Chancellor and an ex-Lord Chancellor—

EARL JOWITT

Each of whom remains convinced that he is right.

LORD SILKIN

Yes, each of them, I presume, remains convinced that he is right—and the debate has also led to our having the benefit of a speech by the noble Lord, Lord Schuster, whom we do not hear often enough in your Lordships' House. It has induced in me a sense of some modesty, because I initiated this debate on the ground that the regulation regarding the police was not clear, and it now transpires that my own Motion was not very clear either—at least, it was not properly understood either by the noble and learned Lord on the Woolsack, or by Lord Schuster. However, the debate has had some satisfactory results. It has secured the assurance that, in so far as it can be avoided, this thing will not happen again, and that regulations will be put forward in a manner which will, so far as possible, be intelligible to the ordinary person. We have also had a further assurance about the setting up of a Committee.

I do not propose to deal with the discussion which has taken place between the noble and learned Lord on the Woolsack and the noble and learned Earl, but it does seem to me that my noble friend was not necessarily advocating the consolidation of these police pension regulations. He was really contending that in proper cases there should be consolidation. Of course, that all depends on what we mean by consolidation. It is, on the one hand, a term of art, and, in the strict legal sense, I fully agree that one has to be absolutely certain that as the result of consolidation one is not affecting the rights of individuals under existing legislation. What most of us, who are not technicians in this art, understand by "consolidation" is something rather different. What we understand it to mean is a statement of the existing provisions on a particular subject set out fully. As I understand it, that is the kind of consolidation for which my noble and learned friend has been contending. That being so, I think he is probably right in suggesting that that is possible. It would merely be, as he says, a series of chapters in which the respective rights of different classes of persons under different legislation are set forth in one document so that the public can see and read without having to make their way through masses of material, some of which refers to non-existent regulations. This debate has, I believe, served a useful purpose. I am satisfied with the assurance of the noble and learned Lord who has replied to the debate, and I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn,