LEGISLATION: PRINCIPLES OF PREPARATION (Hansard, 18 June 1980)

§ Lord RENTON
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

§ The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)
My Lords, Ministers and parliamentary counsel are already well aware of the need to bear in mind the convenience of the ultimate users of legislation. My noble friend's Question and my Answer will, I trust, emphasise once again the importance which the Government attach to this issue.

§ Lord RENTON
My Lords, may I express my thanks to my noble and learned friend for what he has said in the second part of his Answer? May I ask him whether he is aware that it is, perhaps, understandable that parliamentary draftsmen are primarily and properly concerned with the need to obtain precise legal effect, and that in doing so they may very well overlook the needs of the ultimate user, but that Ministers, seeing the drafts of the Bills in a more detached way, might well apply their minds to the best ways of achieving that?

§ The LORD CHANCELLOR
My Lords, as my noble friend knows—and he has shown, over many years, a great personal interest in and understanding of 1112 this problem—I am interested in the question myself. The trouble, of course, is that Ministers—and I do not exclude myself—viewed as a race, are not very good at drafting parliamentary statutes. Parliamentary draftsmen, on the other hand, are a kind of secret priesthood. I have tried to grapple with this problem on very many occasions and I think part of the answer—and I hope that not everybody will disagree with me—lies in the rules of construction which, over the years, the courts have imposed upon themselves in the interpretation of statutes. I think that if the courts had allowed themselves greater latitude, the parliamentary draftsmen, in seeking to set out with accuracy the meaning of Parliament, and in seeking to meet the requirements of the courts, would feel themselves less constrained to use convoluted language, as they certainly do.

§ Lord SIMON of GLAISDALE
My Lords, does not the continued dissatisfaction with statutory drafting really stem from the refusal of the Government of the day to accept the crucial recommendations 108 and 109 of the Renton Committee, whereby there would be effective supervision by the Statute Law Committee, and would the present Government reconsider that decision?

§ The LORD CHANCELLOR
My Lords, I am bound to tell my noble and learned friend that I had, for the moment, overlooked the content of those two recommendations. The Statute Law Committee, of which I believe I am chairman, meets from time to time and has itself tried to grapple with this problem. I am not absolutely sure that it can do as much as one would like it to do, if you grant two premises: one is the rules of construction that the courts will, in fact, apply to a statute; and the other is the requirement of Parliament to express itself in absolutely precise language and of Ministers to control the policy which is embodied in an Act. I think, when you are given that, it is extremely difficult to put in any other body to control the resultant product. Then you get this enormous question of legislation by reference, to which my noble friend Lord Renton drew attention in the course of the Committee on the Employment Bill; then, of course, you get a demand—and a legitimate demand—for consolidation with which we are trying to 1113 get ahead, or a keeling schedule, and then you have to find a parliamentary draftsman who is not busily engaged on drafting new legislation for Parliament to consider.

§ Lord WYNNE-JONES
My Lords, would not the noble and learned Lord agree that confusion of language usually arises from initial confusion of thought? Would he not also accept that if other Ministers and draftsmen were to follow his own affection for the English language, the drafting might be much better?

§ The LORD CHANCELLOR
My Lords, I am enormously flattered at the last compliment and I also agree—it is a thing that I am constantly saying—that confusion of language is usually due to confusion of thought. But, at the same time, one has to point out to Parliament —and it is not always pointed out—that the French, who have an extremely elegant language with very many fewer words in it, manage to convey the same meaning in, for instance, their Copyright Act, which has to mean roughly the same as ours because of an international convention, in about a quarter of the length of ours. I personally think, and I say so frankly to Parliament, that it is because of the requirements imposed by the courts and by Parliament on the parliamentary draftsmen, that they are bound to use so many words; and, of course, the more words you use the more doubts will arise.

§ Lord ELWYN-JONES
My Lords, is not part of the difficulty, at any rate, the pressure upon Parliament through the quantity and speed at which legislation is pushed through Parliament? And is not another factor that in the course of Parliament's examination of legislation, amendments are introduced and passed which often make a havoc of the tidy plan even of the Minister and of the draftsman? May it not be perhaps appropriate to consider again the Law Commission's report on the interpretation of statutes which had some interesting suggestions to make in this field? However, as the noble and learned Lord has indicated, there is a Statute Law Revision Committee over which he presides—it would seem that the noble and learned Lord has not yet had much experience of 1114 the working of that committee—which does its best. I cannot put it higher than that.

§ The LORD CHANCELLOR
My Lords, the noble and learned Lord has made a number of points, all of which unfortunately I did not get down, so he will put them again if he feels that I have not given him an adequate answer. As the noble and learned Lord has perhaps forgotten, I had a previous incarnation as Lord Chancellor, so I do have some experience, though not so long as that of the noble and learned Lord, of the working of this committee. The volume and speed of legislation—I do not know which is the pot in this case and which is the kettle, but I do not want to engage in a controversy as to which of us is blacker than the other! There is no doubt that recent Governments have been passing legislation through Parliament as though it were a legislative Cloaca Maxima. Even so, given that Parliament is trying to do too much, I think that the House of Lords sometimes, if for no other reason, justifies itself in giving an additional opportunity to Parliament to consider the flow of water passing under the bridge.

§ The LORD PRESIDENT of the COUNCIL (Lord Soames)
My Lords, I think that probably the whole House has been enjoying this exchange and the cut and thrust between men of law almost as much as my right honourable, noble and learned friend has himself enjoyed it, but I think that we should not leave it all to them. Perhaps we should pass on.

§ Lord BYERS
My Lords, could we not occasionally have quality rather than quantity?

§ Lord SOAMES
My Lords, we need a proper mixture.

§ Baroness GAITSKELL
My Lords, may I ask the noble and learned Lord the Lord Chancellor one more question? Of course it is right for lawyers to interpret statutes, but the rest of us do not have to interpret; we have to understand. Surely there is a difference?

§ The LORD CHANCELLOR
My Lords, under the constraint of the noble Lord the Leader of the House, I simply say that there is a legal presumption that everybody knows the law.