HL Deb 09 March 1981 vol 418 cc64-83

7.8 p.m.

Lord Scarman

My Lords, I beg to move the Second Reading of this Bill whose predecessor I introduced in February 1980. When I did so I described the Bill as it then was as a modest measure of law reform. The Bill which I am now introducing is also modest but it differs in a number of important respects from the Bill which was the subject of debate in your Lordships' House last session. In the course of an interesting debate, at the end of which I begged and obtained leave to withdraw that Bill, a number of objections were taken to certain specific provisions contained in it. Some of those objections were taken by noble and learned Lords sitting on the Cross-Benches. Those objections, or some of them, I have considered, and with them in mind have put forward this new and different Bill.

The object of the Bill is to give effect to recommendations made by the two Law Commissions of the United Kingdom and by the committee over which my noble friend Lord Renton presided, the Renton Committee on the Preparation of Legislation. This means that three bodies concerned in various ways with the reform of the law have put forward, and indeed can be said to have initiated, the recommendations which find legislative shape in this Bill. The two Law Commissions were united and reported in 1969. The Renton Committee reported in 1975. I emphasise that there is no provision in this Bill which goes beyond recommendations put forward and endorsed by those three law reform bodies. It is for that reason that I lay this Bill before the House with what I hope is not a misplaced measure of confidence. As my noble and learned friend Lord Gardiner said earlier this afternoon, it must need very powerful arguments to displace or frustrate law reform recommendations coming from the two Law Commissions and augmented by the very distinguished Renton Committee.

The Bill is a very short one. It contains two effective clauses: one dealing with aids to the interpretation of our statute law and the other dealing with certain additional principles which could well be introduced into the interpretation of our statute law. The Bill is concerned solely with those aids to interpretation which are listed in Clause 1 and with the principles which are set out in Clause 2. It may be that your Lordships will think that the principles set out in Clause 2 are of far greater importance than the various aids to interpretation contained in Clause 1.

I hope your Lordships will allow me just to say a word or two about the historic way in which, under our constitution, statute law falls to be interpreted. Parliament passes and enacts statute law; the judges interpret the law. It is no part of Parliament's duty to interpret the law; it is no part of the judge's duty, save incidentally, in the course of his judicial work, to make law and it is the primary duty upon Parliament to pass intelligible law. If Parliament falls into error in its legislative process, historically the judges can do nothing about it. There is an old Latin tag which really does apply to the legislative activity of Parliament. If Parliament (and I now break into Latin) quod voluit non dixit—that is to say, if Parliament says one thing but means another—it is not, under the historic principles of the common law, for the courts to correct it. That general principle must surely be acceptable in our society. We are to be governed not by Parliament's intentions but by Parliament's enactments.

There is nothing in the limited proposals contained in this Bill which in any way undermines that basic constitutional position. But like so many broad constitutional generalisations, it has to be applied and developed in the light of experience. Parliament of course, in passing laws, is concerned with language; judges, in interpreting laws, are concerned with language. Language, especially a highly civilised and refined language like English, is not capable of attaining perfect precision, certainty or exactitude. So subtle and various are human affairs that language itself has to be subtle and refined and has to be able to grasp concepts of the imagination which defy certain or precise formulation. That is the basic underlying problem in applying anything so simple to the interpretation of statute law as the general proposition—Parliament makes the law, judges merely interpret it. The problem of interpretation, as every judge who has ever had to interpret a statute knows, is to puzzle out from the language used what it was intended that the statutory provision should do.

To this basic problem—and whatever method of solving it is used, the problem is always there—of course different judges have adopted differing approaches. The limited purpose of this Bill is, first of all, to make certain that some aids to interpretation which could be helpful are by law available to the judges and, secondly, to provide the judges with a uniform basis of principle so that they can know upon what basis to approach the eternal and never to be wholly solved problem of statutory interpretation.

If your Lordships look at the report of the two Law Commissions published in 1969 your Lordships will find that the two Commissions, setting out of course in more detail than I have done the basic dilemma of statutory interpretation, say that they have, after consultation—and when the Law Commissions say "after consultation" they are referring in two words to what is a very long and careful process involving a whole lot of people and interests—come to the conclusion that a limited degree of statutory intervention is necessary in the field of statutory interpretation.

I think most of us who have had experience of the problem would say that the two Law Commissions have indeed made out their case. Certainly, if I may just for a moment speak as a working judge, I would find both clauses of this Bill of great assistance in dealing with the perplexities of statutory interpretation. The Law Commission in their report, with immense learning, go through a good deal of the case law covering the various matters that are themselves covered by the two effective clauses of this Bill. And it emerges from their examination that on each of the matters covered by the two clauses in this Bill you will find in the case books differences of judicial approach, differences of judicial emphasis and even sometimes differences among the judges on principle. The whole field is obscured, I would almost say overgrown, by judicial doubts and anxieties. It is to clear away that undergrowth of uncertainty which is hampering the judges in their attempt to construe statutes according to the intent of Parliament that the limited degree of intervention represented by this Bill is put forward for your Lordships' consideration.

I pass very shortly to the Bill itself. Clause 1 deals with aids to interpretation. Only four such classes of aid are included. In that respect it differs from the Bill I had the honour of presenting last year. The first set of aids to interpretation are to be found in the Act as printed by authority, and the Bill would provide that in ascertaining the meaning of the provisions in an Act all indications provided by the Act as printed by authority, including cross-headings, punctuation, side-notes and the Short Title of the Act, may be taken into consideration.

I would make one or two comments on that. Punctuation is a difficulty. The old Acts were never punctuated. Modern Acts are punctuated. Lord Reid in a famous case in 1960, the Inland Revenue Commissioners v. Hinchley, said of the problem of punctuation that even if punctuation in more modern Acts can be looked at, which is very doubtful, it cannot be done in older Acts. Clearly, clarification is needed there. The position of side-notes to a section in an Act is really quite ridiculous. It is not admissible to look at them. Yet the eye cannot miss them. As Lord Justice Sax said in one case, they are sometimes useful. A more absurdly inconsistent position for the law to be in than that I can barely imagine.

The second set of aids to interpretation can be summed up in international agreements, either referred to in the Act, or copies of which have been presented in one form or another to Parliament, and they are, of course, they must be, international agreements relevant to the Act. It is possible to say that in recent cases the courts have dealt with that problem. But a doubt persists. As recently as 1931—and in the history of the law that is not very long ago—in the case of Ellerman Lines v. Murray the House of Lords ruled that an international convention mentioned in the Long Title of the Act, mentioned in a preamble which the Act had, and some provisions of which were included in a schedule to the Act, nevertheless could not be looked at if by study of the statutory provision in question the natural meaning—whatever that means—of the section was clear.

Noble and learned Lords, notably my noble and learned friend Lord Diplock and my noble and learned friend Lord Wilberforce, have in their judicial career in this House done what they can to correct the ideas which are to be found lying beneath the Ellerman case, but by no means totally. It should be put clearly beyond doubt, and judges should know, that when there is an international instrument either to which this country is a party or which has been presented to Parliament and is relevant to an Act, it can be looked at in construing that Act.

Paragraph (c) is more important perhaps even than paragraph (b). Paragraph (c) would make available to a court any relevant Royal Commission report or law reform body report or such other report that was relevant to the enactment. It has been the law for centuries that such material may be examined by the courts in order to discover what in an old case was called the mischief that the statute was designed to remedy. But society and the law have developed beyond those simple days in which the universal law of the country was the common law and statute merely the exception to correct some anomaly or mischief inherent in the common law. Statutes are now often passed not to correct mischiefs in the common law but to create new rights and new duties and to deal with the complexities of modern society.

As the late Lord Dilhorne said judicially, it is quite absurd to say to a judge, "You may look at this sort of material, previous reports and so forth, to determine the mischief that the Act was passed to eliminate or eradicate, but you must not use what you read to influence your views as to what the Act means ". It is that sort of nonsense that we must really get out of the law. Today, quite apart from the position in the 16th or 17th centuries, it must be making a proper utilisation of our law reform bodies that their reports can be looked at when they are followed by a statute to determine the meaning of the statute, again only as an aid to interpretation. Parliament may by amendment have passed way beyond these reports. If so, it does not need a judge of extraordinary acumen to be able to see that and to deal with it. Judges are as experienced in matters of this kind forensically as members of your Lordships' House are in a legislative context.

Everyone of these aids to interpretation should, I submit, be available to the judges. None of them, of course, is a substitute for interpreting the Act. Indeed, one very learned commentator in the 48th volume of the Harvard Law Review, dealing with this problem of aids to interpretation some years ago, said: The mistake made by those who are opposed to making travaux preparatoires and other materials available as aids to interpretation is to think that those who wish to make them available are substituting them for the interpretation of the Act". They are not; they are there available as aids to be used or not as the judge in his judgment thinks right. The Bill takes care of that position because it provides that the weight to be given to any of these aids shall be no more than is appropriate in the circumstances.

I should like to say a final word on aids. The Bill, of course, would exclude proceedings in the two Houses of Parliament. It would exclude Hansard from the consideration of the judges and the reasons for that are such that I do not think that I need go over them again. When this matter was last debated in your Lordships' House the noble Lord, Lord Mishcon, said of the aids to interpretation to be found in the earlier Bill that all this means much extra work for the profession, all this really is increasing the load upon professional men and judges. That is a lovely generalisation until we see all that is intended; merely that every matter that is printed with the Act can be looked at for what it is worth; that treaties and international agreements to which the Act is designed to give effect can be looked at; that law reform reports which the Act is or may be designed to give effect to may be looked at; and finally I should mention that where there is European Communities legislation which is being enacted one may look at that legislation in interpreting our Acts.

That material will be available in any event in the textbooks and in the legal periodicals. No one could now write a textbook on any branch of the statute law or indeed on any branch of Community law without drawing attention to the matters which are set out in Clause 1. There is no extra burden here, and I am sure that the interested public who are not lawyers will look at those matters in any event and so much the better that they should be looking at what it is legitimate also for the judges to look at.

I can be shorter on what is perhaps the more important part of the Bill—namely, Clause 2. The only argument that I have heard against including in this Bill the three principles there set out, all of them endorsed by the Law Commissions and the Renton Committee, is that they are unnecessary. The principles do bear repetition and they are as follows: that a construction which would promote the general legislative purpose underlying the statute is to be preferred to one which would not; that one which is consistent with the Government's international obligations should be preferred to one that is not; and that in the absence of any express indication the statute should not have retrospective effect. Those principles come into force, of course, only—and I quote from the Bill— where more than one construction of the provision in question is reasonably possible". The point of that qualification, although I think that it will rarely be invoked because of the imprecisions of language, is to preserve the basic constitutional position that if the language is clear Parliament cannot be heard to say to the judge that it meant something else—quod voluit non dixit.

Finally, the Bill would apply to the whole of the United Kingdom and, if your Lordships should be in favour of the Bill and it should pass into law, that would be right because it has the support of the law reform bodies of the whole of the Kingdom—the Law Commission for England and Wales looking after the law of Northern Ireland and the Scottish Law Commission looking after the law of Scotland. The very distinguished committee over which the noble Lord Lord Renton, presided, endorses the various proposals in the Bill.

This is a limited degree of intervention proposed in a field historically left to the judges—proposed by our two law reform bodies and by the Renton Committee and designed to assist the judges in their basic task of interpreting statutes so as to give effect to the underlying intentions of Parliament where that is reasonably possible. My Lords, I beg to move.

Moved, That the Bill be now read 2a—Lord Scarman.)

7.36 p.m.

Viscount Bledisloe

My Lords, I suspect that it is an awesome task for almost anyone to address your Lordships for the first time. It is certainly particularly so for a mere barrister to address your Lordships when almost every other speaker in this debate is a present or a past Lord Chancellor or Lord of Appeal in Ordinary, and perhaps even more so when the mover of the Bill is the noble and learned Lord, Lord Scarman, at whose feet I had the privilege to start my legal career. I hope, therefore, that the House will be even more indulgent than usual to me.

My excuse for intervening in the debate is that I am a working lawyer as opposed to a working judge, who will, if the Bill becomes law, have to take account of it in my daily practice. My remarks relate to those provisions of the Bill which require one to consider additional matters in construing statutes; that is to say, Clause I, apart from paragraph (a) and perhaps particularly paragraph (c), which requires one to consider the reports of Royal Commissions, committees and so forth. Plainly this Bill is designed to ensure that in some cases a court will achieve the right result which otherwise it might not have done. Plainly that is a benefit and a desirable result. But, as the noble and learned Lord, Lord Elwyn-Jones, said when this matter was previously before your Lordships, one has to strike a balance between that advantage and any disadvantages that there may be.

Notwithstanding what was said by the noble and learned Lord, Lord Scarman, for my part I cannot doubt that this Bill, if passed, will add to the length of cases, because as more material becomes relevant so the hearing becomes longer and will make it more complicated and more expensive to advise upon statutory matters. If one has to look at reports one must do so and charge for it. The material referred to in the Bill is not readily available even in the best organised of barristers' chambers, let alone in solicitors' offices or perhaps in the libraries of the lower tribunals in the land which, presumably, have to give effect to this Bill as much as your Lordships' House and places where the noble and learned Lord, Lord Scarman, sits.

I think that the expensiveness was recognised by the committee over which the noble Lord, Lord Renton, presided, and it is, I suggest, a rather important matter. It may be said that that is a mere matter of cost which should not be set against procuring justice; but I venture to suggest that cost itself can be very productive of injustice. One sees frequently many litigants—people with legal problems, people who do not qualify for legal aid but who none the less are not of unlimited means—who are daunted from receiving their true legal rights because of the cost of litigation and the cost of seeking advice. They may not enforce those rights at all or they may settle for too little. Anything which adds to the cost of litigation or the cost of obtaining legal advice is, of itself, productive of a real and frequent injustice—I do not know, but perhaps an injustice rather more frequent than the misinterpretation of statutes which the Bill seeks to put right.

One knows that there are frequent, eloquent pleas for shorter trials; albeit I think that the most recent one in this House related to criminal trials. But one of the main reasons for the added length of trials is that more and more material is admitted before the court. One of the villains of that is the photocopier. Another villain is that judges are ever more unwilling to rule out any evidence, written or oral, which is submitted. One knows more and more that if one objects to evidence, the judge will say, "Yes, I see that there is great force in what you say, but let us let it in in case it is of any use ". That occurs frequently, and it stems from the judge's desire not only to be fair but to be seen to be fair.

We may perhaps forget that it is unfair on the other party if the trial goes on longer and longer because more and more material is laid before the court. The loser may go away feeling that he has had a good run for his money, but the winner—who may, in fact, in the end be paying the bill—will go away knowing that it has cost him far too much to enforce his rights because far too much material was before the court.

In all these instances I would suggest that the balance has been tipped too far towards admitting everything which might produce perfect justice, rather than trying to strike a balance which would keep out some material and shorten trials. I would suggest that perhaps—not particularly in relation to this Bill but generally—those who are in a position to do so should be encouraging the judges to redress that balance rather than encourage the admission of yet further material.

There is one other point which was touched on by the late Lord Dilhorne in the previous debate. Apparently everybody has agreed that all references to Hansard should be excluded. Yet the persons who are to give effect to the Act—both the courts and the lawyers—are to consider any relevant report. Surely the Act may not be intended wholly to implement the report; or the mover of the Bill itself may have said that it is intended to implement the report in all but one or two recommendations. It may be amended during its progress through this House or another place, thus moving it further from the report. But the learned judge trying it, the barrister advising on it, and so on, cannot know that because they cannot look at Hansard to find out; and, indeed, if they could, their task would be painful and laborious in the extreme.

The Law Commission and the noble and learned Lord, Lord Scarman, recognise the problem, but they say that the court is not bound to assume that Parliament has wholly accepted the report. Of course, that is so where the Act says something in plain language which is contradictory to the report. But one has only to have recourse to these aids to construction where the Act itself is ambiguous. If the Act is unambiguous, one does not need them. Therefore, a judge may find himself construing an unambiguous statute with a report before him, leaning towards the report when, in fact, the expressed intention of Parliament was not to give effect to that. One does not quite see how that is solved by the Bill.

Therefore, plainly there are various substantial points to be made in favour of the Bill, but I suggest that it also has disadvantages which must be balanced. Certainly it is not for me—particularly on this occasion—to suggest on which side the balance falls.

7.45 p.m.

Lord Renton

My Lords, I know that your Lordships will wish to join me in congratulating the noble Viscount, Lord Bledisloe, on his most excellent maiden speech. I count myself specially fortunate that it falls to me to congratulate him, for, like my noble and learned friend the Lord Chancellor, I was a fellow bencher of his much esteemed father, for whom we had a great affection in Lincoln's Inn.

The very fact that as a practising barrister the noble Viscount chose the Second Reading of this Bill to make his maiden speech suggests to my mind that he has a fine sense of priority, because this is, indeed, although a difficult matter, one of the greatest importance to our profession. The noble Viscount discussed this subject in not only a lucid, but a fair-minded way and one which commanded our attention. I think that most of his criticism of the Bill, as he expressed it, was really a criticism of paragraph (c) of Clause 1(1). It did not seem to me that his quite trenchant criticism could be applied to other provisions of the Bill in the same way.

In view of what the noble and learned Lord, Lord Scarman, said, it will not surprise your Lordships to know that I warmly support the Bill, for its recommendations are consistent with what was proposed by the Committee on the Preparation of Legislation, apart from paragraph (c) of Clause 1(1). I must make it clear—as indeed did the noble Viscount—that the committee of which I was chairman did not recommend that reports of Royal Commissions and other travaux preparatoires should be brought before the court for purposes of interpretation. Indeed, we recommended that they should not be.

The noble and learned Lord, Lord Scarman, deserves our congratulations and thanks, not only for introducing this Bill tonight but also for not being discouraged by his having felt obliged a year ago to withdraw the somewhat more controversial Bill which he then intro duced. Although last year doubts were expressed about Clause 1, as then drafted, one finds on re-reading the debate on that occasion that none of those who spoke considered it wrong for judges to construe legislation in a way which would promote its general legislative purpose as provided, then as now, in Clause 2(a). The only doubt that arose on that occasion—and it may still persist in the minds of some of your Lordships—is whether it should be spelt out in the Bill, for it was made clear on that occasion, as has been made clear tonight by the noble and learned Lord, Lord Scarman, that the judges already (whether they are strict literalists, if one may so describe them, or of somewhat broader-mind, if I may say so) have regard to the general legislative purpose when they can discover it, which, alas!, is not very often. I shall return to that.

But I suggest that it would be right to spell it out that the judges should have regard to the general legislative purpose. Surely no harm could be done by doing so. Further than that, I suggest that it would have a positive advantage. It would remove once and for all the long conflict between the literal and the purposive methods of construction, and it would make it clear that if the actual words used lead to what Lord Blackburn, when describing "the Golden Rule", called: an inconsistency or absurdity or inconvenience so great that the intention could not have been to use the words in their ordinary meaning", then it would be right to consider the general legislative purpose. It would make it clear that it would then be right to do so.

When in 1979 the Law Commissions—as the noble and learned Lord, Lord Scarman, has mentioned—published their recommendations on the interpretation of statutes, they referred to the "interaction" between interpretation and drafting. I prefer the stronger word "interdependence". I do consider, and ask your Lordships to bear in mind, that there is unavoidably an interdependence between interpretation and drafting. Much of the difficulties of interpretation, and the differences of judicial opinion between one method of interpretation and another, would have been avoided if draftsmen had been less reluctant to allow the intentions of Parliament to be expressed.

Of course, there are various ways in which the intentions of Parliament can be expressed. It used to be done by preambles, but our committee, of which I was chairman, considered that. We leaned against the revival of the preamble. It could be done, I suppose, by having very elaborate Long Titles. But we concluded that it would be best done by statements of purpose. We recognised that they could be misused by being mere manifestos, as Sir Anthony Stainton, then First Parliamentary Counsel, said in evidence.

Having heard a mass of important evidence from draftsmen and from those holding high judicial office, including no fewer than four of the noble and learned Lords whose names are on the list of speakers for this evening's debate, we concluded—and we set this out in paragraph 11.8, the only quotation I shall make, if your Lordships will bear with me—as follows: We agree that statements of purpose can be useful, both at the parliamentary stage and thereafter, for the better understanding of the legislative intention and for the resolution of doubts and ambiguities. A distinction should, however, be drawn between a statement of purpose which is designed to delimit and illuminate the legal effects of the Bill and a statement of purpose which is a mere manifesto". We said that that should be firmly discouraged. So we recommended that statements of purpose should be used when they are the most convenient method of delimiting or otherwise clarifying the scope and effect of legislation". I feel bound to point out, incidentally, that if Parliament's intentions were clearly stated in statutes, expressed in one way or another, there would then be no need for resort to travaux preparatoires.

Our statute law has, we must face it, become so detailed and complex, and so riddled with vain attempts to legislate for anything that might happen, that it is now too often too obscure for us to rely entirely upon literal interpretation. That stage has been passed. Judges, professional advisers, as the noble Viscount pointed out, and everybody affected by legislation are entitled to more guidance from Parliament than they now receive. That is why I welcome this Bill. I hope that my noble and learned friend the Lord Chancellor will feel able to give it a fair wind, and I trust that your Lordships will give it a Second Reading.

7.55 p.m.

Lord Wilberforce

My Lords, the hour is getting rather late, so I hope your Lordships will not think me discourteous if I cut short the compliments. I am not going to bring within that self-denying ordinance the very sincere congratulations that I wish to pay to the noble Viscount, Lord Bledisloe, for his excellent maiden speech. I should like to assure him most sincerely that for us tired hacks on the judicial Benches it is most refreshing and beneficial to hear the sane words of a practising barrister to keep our feet on the ground. I hope he will come down here very often indeed to perform the same task.

I wanted to say a few words in this debate because I joined in a previous one, not when the previous Bill was introduced but in 1966. There was a debate then on a report of the Law Commission. This subject was discussed. I looked up what I said then, and it was this: I suspect"— that statutory interpretation— is what is nowadays popularly called a non-subject. I do not think that law reform can really grapple with it. It is a matter for educating the Judges and practitioners and hoping that the work is better done".—[Official Report, 16/11/1966, col. 1294.] Much better were the words said by Lord Reid in that same debate. May I quote his words, which carry so much of the flavour of that great man?: Many books are written about statutory interpretation. I always advise young men, 'Don't read them', because the rules are extremely simple. One looks at the words of the Act and asks, 'What is their natural meaning?'.. what is all this about 'the spirit of the Act?' … I am waiting with avidity to see what these new ideas are, but I am not waiting with any optimism".—[Official Report, 16/11/1966, col. 1278.] So Lord Reid, in 1966.

I see no reason to recant what I then said. I still think that the interpretation of legislation is just part of the process of being a good lawyer; a multi-faceted thing, calling for many varied talents; not a subject which can be confined in rules. But I think it quite consistent with that to say, as I want to say this evening, that this Bill, which does not profess to be a code or of universal prescription, can be quite useful. I am very happy to give it support on that basis.

It is useful for what it says and what it does not say. I shall not say much about what it says in Clause 1, because that has already been well explained, lucidly explained, by the noble and learned Lord, Lord Scarman. I should like to sound a note of sympathy with what was said by the noble Viscount. As the noble and learned Lord on the Woolsack knows only too well, I am rather a bore in this House about the costs of litigation, and anything that bears on that matter is to me extremely sympathetic. I think that what the noble Lord, Lord Renton, said is very wise, probably, that most of the gravamen of possible costs can be centred on paragraph (c). I hope very much that the noble and learned Lord, Lord Scarman, will consider that particular aspect of the matter when we come to the Committee stage.

The remarks I want to make briefly concern Clause 2(a) about the general legislative purpose. What I think about that clause is that it carries a great deal of persuasion because it is moderately expressed. It could have gone so much further. It could have referred to what Lord Reid said, "The spirit of the Act". We know that there are statutes in other countries—in Switzerland and in New Zealand—which go a great deal further than this clause and give much greater powers to judges to find the spirit of the Act. I think that the restraint which is shown in this paragraph is extremely salutary.

That brings me to a point on which I want to say a few words. It is often said that British courts compare unfavourably with continental courts in the way they interpret statutes. They are said to be more literalist, more narrow, less purposive, and some have even said that the House of Lords in its judicial capacity is guilty of the same defects. I was very happy indeed to hear that the noble and learned Lord, Lord Scarman, did not take that line at all in introducing the Bill, and I am happy to see there is nothing in the Bill which supports such an approach.

The fact is that that is a tired old myth; it is one sedulously propogated by people who do not to their homework and prefer to parrot a phrase rather like people who prose on about the over-valued pound. Asked for statistics or some examples, they give none but instead trot out a few tired old cases which have been long discredited by decisions of this House. One need only think of the actual numbers of cases involved. Pick up any volume of the Law Reports and one finds—I have checked it with a great number —about 25 in each volume of cases of statutory interpretation in each volume of the Law Reports in each year. Add to those the number of unreported cases, the number of cases decided in county courts, by magistrates and by tribunals and one has an enormous mass, thousands of cases which must be decided every year of statutory interpretation. It is all work extremely well done of which perhaps one each year is picked out and is said to be a narrow piece of interpretation. One cannot possibly generalise on the subject unless one puts a great deal more effort into it.

As regards foreign courts, one can look around and find in the courts of France or anywhere else decisions just as narrow as one finds here. In interpreting con- ventions, the record is by no means to our disadvantage. So with this House in its appellate capacity. So far from the case being that we are a reactionary body holding up the liberal tendencies of other courts or academics to improve the law, the opposite is the case. I feel absolutely confident in saying that there is no stronger advocate or practitioner of purposive construction and no more skilled operator in that field than my noble and learned friend and colleague Lord Diplock, and I quote one extra-judicial passage of his: If the courts can identify the target of parliamentary legislation, their proper function is to see that it is hit, not merely to record that it has been missed". Every volume of the House of Lords' Appellate Cases is full of decisions of that character. To give a few examples—so I am not hoist with my own petard and accused of making generalisations without support—termination of pregnancy by a registered medical practitioner includes termination by nurses, and one could not have anything more purposive than that. Mr. Fothergill had his luggage damaged on an international flight; it was held that the loss of his Marks & Spencer sandals and a shirt worth £16 constituted damage to his baggage, and one could not have anything much more international-minded than that. In the case of Operation Julie, the great inquiry regarding drugs, a purposive interpretation was applied to the question of forfeiting the ill-gotten gains. And in the case last year about talaq marriages, the House of Lords took into account the international convention bearing on marriages. Be it said—it is only fair that it should be said—that in every one of those decisions the liberal line was taken by the House of Lords against the opposite line taken by the lower court.

I do not want to make a party speech in favour of our own country or House, but I really believe that comparisons between one country and another or between one court and another are not helpful in this field. We are all engaged in the same job, the very difficult job of interpreting the mass of obscure legislation we have had put upon us, and I hope we may all, with fair but moderate self-criticism and learning from each other, join together in the great task of giving certainty of interpretation to the public and of satisfying the public of the wisdom of Parliament and the humanity of the judges. That is the job we should be doing and I welcome the Bill because it takes a small and modest step and makes a small and modest contribution to exactly that purpose.

Lord Gardiner

My Lords, I wish at the outset warmly to congratulate the noble Viscount, Lord Bledisloe, on his maiden speech. He was short, clear and to the point and we all look forward to hearing him again soon and often.

No-one so far has opposed the Second Reading of the Bill. I rise briefly to support it. I was of course a supporter of the original Bill, from which, no doubt wisely, certain clauses have now been withdrawn. I can make no secret of the fact that I am not an admirer of the way in which legislation is prepared in this country or of the way in which our Bills are drafted, but I am not going into that tonight. I cannot refrain, however, from saying that I regret very much that even so many of the very modest proposals made by the committee of the noble Lord, Lord Renton, to improve our lot in these regards have so far not been implemented. However I shall not say anything further, and for one reason, namely that when we discussed the previous Bill last year, the noble and learned Lord the Lord Chancellor made the most splendid speech with every word of which I agreed, and I hope very much that he will repeat it tonight.

8.7 p.m.

Lord Simon of Glaisdale

My Lords, I, too, rise in the hope that your Lordships will give the Bill a Second Reading and I wish to congratulate my noble and learned friend Lord Scarman on its introduction and his explanation. I also wish to be associated with the congratulations to the noble Viscount, Lord Bledisloe.

There are two leading principles in the British constitution, the sovereignty of Parliament and the rule of law, and the fact that we claim to live under the rule of law means that the task of the courts should be not only to interpret the law independently but also to ascertain the meaning of what has been said rather than what Parliament meant to say. What a legislature or executive means to say is relevant in a totalitarian régime but not in a régime which claims to live under the rule of law.

Having said that, if the draftsman and Parliament and the courts do their job properly, each of them, what parliament means to say should be identical with what the courts declare to be the meaning of the words used by Parliament. For the draftsman there is the guidance which has been given by the Renton Committee and, like the noble and learned Lord, Lord Gardiner, I regret that it has not been fully implemented, and particularly that the machinery of control by the Statute Law Committee has been stultified.

Even more, there was the recommendation of the Renton Committee accepting the recommendations of my noble and learned friends the Lord President and the Lord Justice Clerk that statutes should be, much more than they are at present, framed to propound general rules rather than trying to cover any foreseeable situation. The courts are perfectly accustomed in the sphere of the common law to handling general rules, and as the Renton Committee in accepting the recommendations of my noble and learned friends pointed out, the statute would be far more satisfactory if that were done.

The noble Lord, Lord Renton, drew attention last Session to a number of Bills which were in flagrant disregard of that recommendation. Mercifully, so far this Session there has been a considerable improvement, and I have no doubt that that has been due to the activities of the noble and learned Lord. That is the aspect concerning the draftsman.

There are two things that Parliament can do. Parliament can make its meaning absolutely clear. There was a very distressing instance in the Race Relations Act, where it was left entirely in doubt as to whether the Act was intended to reach working men's clubs. It was notorious that a number of working men's clubs practised racial discrimination, and indeed the point was specifically raised, certainly in this House, and I think in both Houses. Yet the matter was left so much in doubt that different conclusions were reached as to the meaning of the statute in that regard by the Court of Appeal and by your Lordships' House sitting judicially. I know that a decision either way was bound to attract some odium. Nevertheless, I venture to suggest that it was the duty of Parliament, being apprised of that problem, to make its meaning clear beyond any doubt at all.

The other thing that can be done—I put this forward with a little more hesitation—is, instead of the Report stage in the second House which considers the Bill, there should be a scrutiny of drafting stage. Very little happens on a Report stage in the second House, except perhaps to implement undertakings given in Committee, but that could be done if the other place adopted your Lordships' rule and allowed amendments on Third Reading. I put that suggestion forward with some hesitation, though with full confidence. My hesitation is because I urged that suggestion on the Renton Committee. The committee did not accept it, or at any rate it passed it over in silence.

As for the courts, in my respectful submisison to your Lordships this Bill gives very valuable guidance. I think that to a great extent it is declaratory. I think that the whole of Clause 2 is declaratory of the better practice of the courts. But since that is the better practice, I can see arising no harm at all, and possible good, from enacting it.

As for Clause 1, as my noble and learned friend Lord Scarman pointed out, there has been a difference of judicial opinion about whether one can regard punctuation, and that should certainly be resolved. As for cross-headings and side-notes, that is new law. I am quite prepared to see that, so long as we recognise that they should be amendable and therefore would give extra scope to obstruction. Perhaps that does not apply particularly to your Lordships' House. I cannot see that that proposal would in any way involve extra cost, because there is the statute with its cross-headings, its punctuation, and its side-notes.

I should have thought that paragraphs (b) and (d) are certainly existing law. As for paragraph (c), again I cannot see that it can add to costs. Courts are entitled, indeed in my view they are bound, to look at a Royal Commission report or, say, a Law Commission report in order to ascertain what is the defect that the Act was aimed to rectify. Your Lordships have just given a Second Reading to the Matrimonial Homes and Property Bill. That is a Bill which was set out in a Law Commission report. Unless we enact something on the lines of paragraph (c), the courts can look at everything up to the commentary on the Bill, but then the present law, by a majority in your Lordships' House, says that you can look no further. Again, what is proposed cannot possibly add to costs. One is looking that far; why not just read on?

Then again it is said that the Act might not implement the report, but that is perfectly easy to ascertain, is it not?, merely by comparing the report, which in any case is before the court, with the Act of Parliament, which is also before the court. Therefore, I very much hope that my noble and learned friend will not yield to any blandishments over paragraph (c), but will stick by it as it stands. For these reasons, I hope that your Lordships will give the Bill a Second Reading.

8.16 p.m.

Lord Elwyn-Jones

My Lords, first, I should like to congratulate the noble Viscount, Lord Bledisloe, on his admirable maiden speech, in which he combined clarity with precision and, I was glad to see, agreed with one or two of the observations that I had made on earlier occasions—which is always very flattering to hear. We look forward to hearing the noble Viscount very frequently.

When a noble and learned Lord of the distinction of the noble and learned Lord, Lord Scarman, who has been on the Bench for many years, expresses the view that should the Bill became law it would be useful to him judicially, that carries very great weight with me, in particular when the view is supported by the three other noble and learned Lords who have spoken, and it would be a bold man indeed who would gainsay them. However, as the noble Viscount, Lord Bledisloe, said, it is not all a one-way process. I certainly hope that the Bill as it now stands will receive a Second Reading, and in Committee we shall have to look at some of its provisions.

The noble and learned Lord, Lord Scarman, always displays flexibility and is free from dogma in these matters. I am very happy to see that the matters which troubled me most in the previous version of the Bill have been dropped, and I now find myself in substantial agreement with the content of the Bill. However, one or two noble Lords have expressed their reservations about the referability of reports of Royal Commissions, committees and other bodies, and, when we come to Committee, we shall have to consider that matter again.

I could not help recollecting what the lamented late Lord Dilhorne asked by way of questions on this matter, when he said: Is it to be assumed that Parliament has accepted all that the Royal Commission has said? Only then can it be assumed that the report of the Royal Commission or committee can be a reliable guide". Those of your Lordships who were present on that occasion may well remember how Lord Dilhorne expressed the fear that judges might be tempted to decide not what it was that Parliament intended by the words that it used, but what in the light of the various documents (he said that with a little contempt, I remember) Parliament should have done. But that, as he rightly said, would be going beyond the judicial function. I think that the noble and learned Lord, Lord Scarman, used the word "nonsense" in relation to that point of view. If I may say so, he is lucky that the man who was the author of that view is not here, because I think that there would otherwise have been a fairly tough response. We shall have to look at that point; it raises a very serious problem indeed.

So far as the provisions in Clause 1(1)(b) are concerned, I do not know whether the scope of that paragraph is not a little wide, but that may be a matter we can look at in Committee. On Clause 2 of the Bill, as it is generally agreed that it is no more than a statement of present practices in construction, I certainly think it does no harm. In passing, may I say what a delight it was to hear the noble and learned Lord, Lord Wilberforce, speaking up in his judicial capacity for the Lords. It was splendid! I hope it will be duly reported, even in legal journals, but I doubt it. However, I must not engage in vanity on these occasions. I can say how pleased I was because, unhappily, I was not a member of the bodies which reached any of those excellent decisions. I do not wish to take further time as there is more business to come before the House, but on this occasion, at any rate, I myself am happy to give a fair wind to the Second Reading of this Bill.

8.21 p.m.

The Lord Chancellor

My Lords, the noble and learned Lord, Lord Gardiner, invited me to make the same speech as I did last year. Perhaps I may at this hour take it as read. I can assure the noble and learned Lord that I still think exactly what I thought last year, and if I were speaking entirely for myself I should repeat it again in some form or another—and I will say one or two things in the same sense now. But, of course, there always is a conflict of interest for Lord Chancellors. One has one's professional integrity to preserve, and therefore one must give a straightforward opinion on the thing, which reflects one's real opinion. One also has to reflect the opinion of the Government, which, if I may venture to say so in the presence of two predecessors, is not always identical with one's professional judgment in the matter. To begin with, I must say that the Government are neutral on this Bill, although I very much hope—and here I speak in both capacities—that this House will give it a Second Reading, at any rate.

My Lords, I should at this stage like to join in the congratulations to our maiden speaker, the noble Viscount, Lord Bledisloe. Some of us, as the noble Lord, Lord Renton, reminded us, knew his delightful father and loved him very dearly; and, speaking for myself, having been on and off a Member of this House for quite a long time, one of the times when I was on I heard a most remarkable speech, from about the same place as the noble Lord, Lord Renton, is now sitting, by his grandfather. So I have survived three generations. But I will pay the noble Viscount the compliment, if I may, which it is not usual to pay on these occasions, of trying to tie in some of his arguments with the debate itself. That is not always thought to be appropriate for a maiden speaker, but he spoke with such cogency and such clarity that I think it would be difficult to handle the subject, which he handled so well, without talking about some of the things he said.

Now there is one thing that he said with which I wholeheartedly agree, as did my noble and learned friend Lord Wilberforce, and that is the growing prolixity and therefore the growing expense which is clogging up the courts at the moment. I was looking the other day at the figures for the Crown Court, and on an average throughout the country cases are taking two hours longer per case than they did 10 years ago. This is a very serious thing. There does not quite follow from that the conclusion which the noble Viscount was very careful not to draw but which I think he had at the back of his mind, that this might be an argument against the Bill. I think a greater robustness on the part of the Bench at first instance, and a greater robustness, conciseness, incisiveness and decisiveness on the part of the profession in the conduct of cases, is very much to be desired indeed and the proper remedy for the growing length to which cases are taken, both at first instance and on appeal.

As to the other thing he said, the premise I wholly agree with but I feel some qualification about the conclusion. I absolutely agree with him that the introduction of inordinate masses of only marginally relevant material, whether by way of evidence, argument or the citation of precedent, is a growing and very tiresome menace at every level in our courts of law; but, there again, I think that English lawyers in particular must avoid the classic error into which I think the English law of evidence has fallen from the first of mixing up admissibility and relevance and weight. English law has been much too ready to reject on grounds of admissibility things which ought to be rejected on grounds of robustness, marginal value and weight. I think this has been a haunting fault of our lawyers for something more than 300 or 400 years. So I would qualify the noble Viscount's conclusion while accepting his premises.

My Lords, I shall not deal in detail at this hour with the content of the Bill, but I should like to say one or two things about its philosophy, because I agree with the philosophy of the Bill entirely. I think it was T. S. Elliot who said: The lawyer's motto is, 'The spirit killeth, the letter giveth life'". I fear that that has become too much the case in our approach to the interpretation of statutes. As my noble and learned friend Lord Wilberforce pointed out, the main business, almost, of our Appellate Committee and of our appellate courts, and a great deal of the business of our county courts, magistrates' courts and courts of first instance in the High Court, is precisely finding out what statutes mean. Up to and including a certain period in the 19th century, I think it was broadly true that you could adopt a literalist interpretation of statutes and at any rate have a very good chance of being right. The literalists, therefore, won an almost complete victory over the mischievites or the purposive constructors.

I think that now the balance ought to be tilted a little the other way, because the immense complexity of modern statute law, which forms the staple diet of the courts and to which my noble friend Lord Renton referred in his speech, is such that one cannot, I believe, interpret a statute aright unless one can place it in the correct legislative context in which the statute was passed. That does not mean to say, any more than the noble and learned Lord, Lord Scarman, meant to say, that one ought to introduce recitations from Hansard into the courts (it would be over my dead body first!) but I think that the blue book, the reports of the Law Commission and of the law reform committees have a definite part to play. If I may say so to the noble Viscount, both in advising as a barrister and in interpreting as a judge I think they have a part to play which is almost indispensable. I think that they can tell you the state of the law probably better than any textbook.

Incidentally I was very glad to hear my noble and learned friend Lord Wilberforce refer to the words of Lord Reid. There is not a good book on the interpretation of statutes; I do not care what anybody says. There is not a good book on it and I am quite certain that in the interpretation of statute law both the adviser and the judge cannot afford to do without studying the legislative context into which the statute has been passed. That means reading what the law was before it was passed, which can almost always be found either in the Blue Book or in the Law Commission report, and also seeing what that report intended to suggest. Of course it is true that these reports must be used with the greatest of caution for the sort of reason which the late Lord Dilhorne pointed out in the last debate; namely, that it by no means follows that, because the Law Commission or the Blue Book authors recommended a particular remedy for the mischief, Parliament intended to carry out that remedy either in whole in some cases or in part in others. Therefore, it needs a very good deal of common sense in using external documentation of that kind.

However, to suggest in the latter part of the 20th century that judges ought not to know what is going on, and that it is all very indecent and that only the words of Parliament can be studied and their meaning speculated about, seems to me to be a thoroughly retrogressive move. I can think of at least one case in the House of Lords in the last 15 years, or perhaps in the last 10, in which if that had been more systematically carried out the House of Lords would have come to a different conclusion. I can say that with certainty because, having legislated under the noble and learned Lord, Lord Elwyn-Jones, to reverse their decision, it was no longer law in England; and I, sitting as Lord Chancellor in a Scottish appeal where remedial legislation had not been taken, found that I was a member of a unanimous panel which said that the previous decision was wrong in the light of the arguments we had heard, as we were entitled to, because the English precedent was not binding on Scottish courts, and for this purpose we were a Scots court. I can say with complete confidence that an over-literalist approach is no longer the law and no longer corresponds to the actual practice of the Court of Appeal the House of Lords, or the best practice of the High Court.

But as one of the noble and learned Lords who have taken part in this debate has pointed out, statute law interpretation must go on in the county courts and the magistrates' courts as well. This is where I think that this Bill is of the most use. I believe that it is, as my noble and learned friend Lord Simon of Glaisdale said, very largely declaratory of what is the best practice at the moment. Where it is needed, maybe in the magistrates' court in Slough or a county court in Wales, is where a judge does not have either the experience of interpretation or the ready material available to spell out the right principles of judicial construction to apply; and it is because I think that had it been written down in black and white that certain things are possible and that there is a difference between acceptability and weight and that certain things can be looked at, it would be of the greatest possible assistance in the inferior courts which have to do the same work in interpretation as the appellate courts at a higher level.

It would be possible to go on at great length but I am not going to do so because we have other business to perform. But I should like to endorse what my noble and learned friend Lord Wilberforce said. In conclusion, I would like to endorse it. It is the very greatest possible mistake to draw invidious comparisons between continental systems and our own. In theory, the continental systems are not bound by precedent but there is no greater adherent to precedent than the French judge. Theoretically, the French courts are bound to a purposive interpretation and they come to exactly the same conclusion as an English court would do; so that there is not the difference that people think there is.

Having said that, I should like to thank the noble and learned Lord, Lord Scarman, for persisting in his efforts. He ran into a great deal of flak last time, but this time he has had a better reception. I myself have welcomed it individually on both occasions, and so far as the Government are concerned they preserve a neutral attitude.

8.35 p.m.

Lord Scarman

My Lords, it is not the first time that I have sailed through stormy weather to find tranquil waters, but whenever one reaches tranquillity after the storm one has lost a little tackle on the journey, as my noble and learned friend Lord Elwyn-Jones reminded me. However, I learned from the storm. This debate, apart from the very great interest of the speeches which it has been my privilege to hear, is marked by two delights. One is a present delight in hearing the maiden speech of the noble Viscount, Lord Bledisloe. Of course, I know him as that dirty little boy, Christopher, available to devil and to make sure that I did not overlook all the points for and against my case of which I should be made aware. He has made his speech with great skill and eloquence and just a little bit of mischief; and I thoroughly enjoyed it. I think that I should be uttering the views of all of us if I say that we look forward to hearing the noble Viscount again and again.

The other delight is a delight in retrospect. The name of the late Lord Dilhorne has been mentioned more than once in this debate. That is most appropriate. He took a part in the previous debate and he developed, as one would imagine, a forceful speech against the Bill then presented to the House. As we left the House—and this was my stormy period; I am now in my tranquil period—he turned to me and said, "Leave out this and leave out that and have another go; and you will not do so badly". That was typical of the friendship, warmth and immense judgment in public affairs that marked the career of Lord Dilhorne. It was a great pleasure to hear so many of your Lordships mention him in the course of this debate.

There is really nothing for me to say in reply to this excellent debate. I emphasised at the beginning—and many noble and learned Lords have picked it up and emphasised it—the limited nature of this Bill. My noble and learned friend Lord Simon of Glaisdale emphasised, as I endeavoured also to emphasise in opening this debate, the constitutional position of the rule of law in this country. Parliament can make laws but cannot interpret them; judges interpret laws but do not take a legal initiative. It is upon the basis of those principles and institutions that the rule of law in this country is maintained. There is nothing in this Bill to undermine those principles; there is much to strengthen them, because the Bill is intended to improve the practice of the judges in a way in which they would wish it to be improved, by making clear what is available to them and making clear to them the principles they are to follow.

As the noble and learned Lord the Lord Chancellor said, it is important to bear in mind that statutes have to be interpreted and applied by courts in all parts of the country, many of them remote from a law library. It must be of great value if a short, limited statute like this, drafted, I would suggest, in perfectly clear terms, is available so that they know what they may look at, what weight they may give it, and have in front of them the principles to guide them through the complexities of modern statute law.

When we come to Committee I assure my noble friend Lord Simon of Glaisdale that I shall not easily yield to the blandishments of 1(1)(c); I shall be prepared to refer to the Renton Committee's admirable report in explaining the mysteries of 1(1)(d). I hope that these principles are clear and I invite the House to give this Bill a Second Reading.

On Question, Bill read 2a, and committed to a Committee of the Whole House.