HL Deb 26 March 1981 vol 418 cc1341-7

7.34 p.m.

Lord Scarman

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Scarman.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE LORD NUGENT OF GUILDFORD in the Chair.]

Clause 1 [Aids to interpretation]:

Lord Scarman moved Amendment No. 1: Page 1, line 15, leave out ("that time") and insert ("the time when the Act was passed").

The noble and learned Lord said: This is a purely drafting amendment. If one looks at Clause 1(1)(b), which provides that one may look at a treaty or other international agreement which is referred to in the Act or of which copies have been presented to Parliament "before that time", the trouble about the drafting is that "that time" is not identified. The purpose of this amendment is merely to delete that sloppy piece of drafting and insert the precise time meant, which is the time when the Act was passed. I beg to move.

On Question, amendment agreed to.

Viscount Bledisloe moved Amendment No. 2: Page 1, line 17, leave out paragraph (c).

The noble Viscount said: This amendment seeks to delete paragraph (c) of Clause 1(1) from the Bill. It would, if it remained in the Bill, allow reference to all relevant reports which have ever been laid before either House of Parliament. Though I am speaking only for myself as an unfortunate practitioner who would have to implement this paragraph if it were passed, I am authorised by the Law Reform Committee of the Senate to say that they are unanimously in support of this amendment. I gather that the Law Society takes the same view and, fortunately, at this stage the noble Lord, Lord Mishcon, is here to indicate that that is so.

May I make two preliminary points about this paragraph? First, it applies to all Acts whenever passed and, therefore, to all reports whenever made. When this matter was debated on Second Reading, those in favour of this provision spoke mostly in terms of a modern report of the Law Commission, probably with a draft Bill attached and art Act immediately giving effect to that. That is one instance. But there are many Acts still in force which derive from very old reports, certainly long before the Law Commission came into being, and still more statutes containing provisions deriving from such reports. Under this paragraph all these would be admissible and it would be a mammoth task to track them down.

Secondly, this paragraph applies to all interpretation of statutes; not just to interpretation done in your Lordships' Judicial Committee, in the Court of Appeal or in the High Court, but to an interpretation upon a section given by a solicitor in his office or by a barrister, and to all hearings in lower courts, magistrates' court and county courts. There are a very large number of statutes in day-to-day use on minor matters which derive wholly, or in part, from some report or other.

The reason why I suggest to your Lordships that this paragraph should not remain in the Bill is as follows. Undoubtedly, it will greatly increase the work to be done and the difficulty of giving advice on, or arguing in court about, any point of statutory construction. If that is so, there is no doubt that it will also greatly add to the cost. Perhaps I may say in parenthesis that this is not a case of the legal profession's ganging up to preserve some existing right that gives them advantage. I suppose that we should, in fact, all be deeply grateful if this amendment did not succeed, so that we could scatter references to reports into our advices and charge a great deal more for them. But this is an objection in the general interest, not in the interest of the profession.

On Second Reading it was said that it was wrong to suggest that this paragraph would add to the burden or put up the costs, although it seems obvious that if you require practitioners to look into a great deal more material—some of it not easily available—it will cost more when they do so. That was the view of the committee headed by the noble Lord, Lord Renton, who, unfortunately, is not able to be here this evening, and who said, in relation to a clause such as this: We think that unrestricted admission of such materials would place too great a burden on litigants and their advisers".

The reasons advanced why this would not increase cost were, first, that the reports would be available in the textbooks and in the legal periodicals. It is perhaps a little optimistic to assume that every practitioner, every solicitor in some out-of-the-way country town has access to legal periodicals, or that he can find the relevant article written some 20 years ago when the Act was passed. But neither textbooks nor periodicals will refer to the older reports in question. It will be many years, even if this clause is passed, before textbooks can possibly catch up with the references that one would need. So one will have to do a great deal of spadework every time one advises on any statute.

Secondly, it was suggested that there would be no extra burden because everybody would be looking at the reports, anyhow, to see the mischief, or the preexisting law, and that therefore the reports would be readily to hand. I respectfully suggest that this is where the provision slightly departs from reality. This point was made by the noble and learned Lord, Lord Simon of Glaisdale. If he took reports, in the days when he was a practising barrister, down to magistrates' courts to address arguments on the mischief of the Act to the magistrates, he was a braver man than either I or the majority of other practitioners.

An argument upon the mischief of an Act is an esoteric point which one makes in an appellate court to bolster up—not wrongly, necessarily—some existing argument. In ordinary cases when one is giving advice on a statute one does not worry about the mischief until one has got to the Court of Appeal at least, and probably to the Judicial Committee, to advance the mischief argument. But this paragraph suggests that you may find the answer to the meaning of the statute in the report itself. Therefore it will become the bounden duty of all practitioners to seek out these reports on every occasion when they have a point of statutory construction to advise on—not even necessarily to get the right answer. It is an advocate's duty to search out any argument which might forward his client's case, so he may well resort to the report to find some loose phraseology which would enable him to press a doubt which would not otherwise exist. This point was made by the noble and learned Lord, Lord Diplock, when a similar Bill was first debated in your Lordships' House.

The second point against the paragraph, in my view, is that the courts—especially the lower courts if this is passed—will in practice end up construing the report to find the intention of the committee which reported, and not construing the statute to find the intention of the legislature. I accept fully that this is not what is intended and not what they in theory ought to be doing. But once they have been shown the report they will start ferreting about, and everybody will be discussing what the committee meant. In the end, one will be construing reports and not construing statutes.

The third problem which arises is when Parliament did not intend the Act which they passed to give full effect to the report in question. It may be that the mover of the Bill expressly said that in a particular respect or two he did not intend his Bill to give effect to the report. Or, alternatively, it may be that an amendment was moved which departed from the report. The court cannot know that because it cannot look at Hansard. Indeed, it would be an absolutely insuperable task for it to do so. Therefore, inevitably it will tend to think that the Act was intended to implement the report. In a few cases it will be obvious that it did not: a modern Law Commission report which has a draft Bill attached to it and an Act passed departing in one respect from it. If you compare the two, you will see that the Act in that respect was not intended to implement the report. Equally, if the Act is precisely contrary to the report, you will know that it is not intended to implement it.

One has resort to these aids to construction when there is an ambiguity. If the words are plain you do not need aids to construction. Where there is an ambiguity it is inevitable that the court, faced just with the report, and the practitioner, faced just with the report, will tend to think that Parliament intended to implement the report, when in fact it departed from it. So in many cases I suggest that this paragraph, if enacted, could lead to the wrong result, a result contrary to Parliament's intention, rather than the one intended. This point was forcefully made by the late Lord Dilhorne, when the matter was first before your Lordships.

Fourthly, there is a point which I do not think has been raised before; namely, if this paragraph is enacted, what is the status of previous decisions on statutes? There is in the report, let us say, an existing decision made upon the meaning of a statute which was made without resort to the report. Now, with resort to the report, it may well be that an argument can be advanced that that decision was wrong. Does the court now overturn the old decision? If so, it is a major blow to precedent. Or does the court ignore the report and say, "That is bad luck. The only place that that can be dealt with is in the Judicial Committee of your Lordships' House"? If the second answer is the correct answer, I think that those of your Lordships' House who are members of that committee had better prepare for a rather large quantity of work. If it is said that any previous decision on a statute can be overturned by looking at the report, but only in the Judicial Committee, rather a lot of appeals will end up there.

For all those reasons, I suggest to your Lordships that this paragraph, if enacted, would be conducive to more difficulty, more trouble and more expense than it merits. I beg to move.

Lord Mishcon

We support the amendment and the Law Society support it. I have nothing to add.

7.47 p.m.

Lord Scarman

I do not share the apprehensions expressed by the noble Viscount, Lord Bledisloe. I wish to assure the Committee that the legal profession is not really so ill-equipped with the necessary tools of its trade as one might have thought from listening to the anxieties expressed by the noble Viscount.

Already the courts look at relevant reports. They have been doing so for years. As long ago as 1898, in the Eastman case, a patent case, the Lord Chancellor of the day, Lord Halsbury, said that it was a very helpful thing to do. Of course he was living under a law which said that you could look at reports to discover the mischief which Parliament was intending to remedy, but that you could not look at the report to interpret the statute itself. Nevertheless, Lord Halsbury, the Lord Chancellor in the Eastman case, said that he found reports to be extremely helpful in discovering what Parliament intended.

Since 1898, if not before, our courts have been looking at reports, wherever relevant, for the purpose, in the ancient phrase, of "discovering the mischief ". All that this paragraph (c) intends to achieve is that they may look at them not only for that purpose but also for the purpose of interpreting the statute. The truth of the matter—this has indeed conditioned my approach to the amendment—is that it dues not matter very much whether paragraph (c) stands part of the Bill or, as is proposed in the amendment, should be deleted. I am well aware of the opposition to paragraph (c) and of the support for this amendment in the legal profession.

Why does it not matter? It does not matter because the courts already look at relevant reports and will continue to do so, whether this amendment succeeds or fails. It is really beyond common sense to expect courts to close the book with a bang when the recommendation part of the report is reached, having studied it in fine detail when indicating the mischief which the report is recommending should be eliminated by legislation.

I shall not detain the Committee for long. I think it extremely important that this Bill should pass through all its stages as soon as possible and should reach another place. The really vital part of this Bill is Clause 2, which deals with additional principles for the interpretation of statutes and I am glad to see that that clause has attracted no criticism or suggested amendment and therefore I am content not to oppose this amendment.

The Lord Chancellor

Perhaps I may add a word or two—although it is late and I will not say more than a word or two—on what has just fallen from my noble friend on the Cross-Benches. I never cease to be full of admiration and love for the almost fantastic conservatism of my profession and a splendid, persuasive and rhetorically perfect example came from the noble Viscount who sits on the Cross-Benches, and I am also addressing the Law Society through the beautiful presence of the noble Lord, Lord Mishcon. If they really think that courts and practitioners do not read Blue Books in order to find out what statutes mean, they are living in a complete fool's paradise. When I was at the Bar I was constantly having to advise as to the meaning of statutes and as constantly I was finding, as I do in this House and as I do when I sit judicially, that the words of the parliamentary draftsman are at first sight totally incomprehensible. I have to explain to magistrates' courts, to county courts, to High Court judges of different degrees of intelligence, to courts of appeal, to the House of Lords, what I have submitted on behalf of my client the Act meant. One has now a range of legislation to look at which it is beyond the wit of man to understand, and particularly when it is incorporated in parliamentary draftsman's language it is even more difficult to understand.

About 10 years ago I was dining with an old friend of mine who is a parliamentary draftsman and he introduced me to his charming son. I said, "You know, the funny thing about Parliamentary draftsmen is that you can recognise their handwriting; you can see who has drafted the Bill. There is one who drafts his Bill like the great pyramid—in great blocks". He said, "Oh yes, that is … "—the draftsman in fact who had drafted the Industrial Relations Act—and he was right. I said to him, "There is another kind of draftsman who drafts his Bill like one of those printed circuits in very sophisticated electrical equipment and manages to fit into the least possible circumference the largest number of ideas". He said, "Oh yes, that's …"—and it was the draftsman who had drafted the European Communities Bill, and he was right. So that I was able to communicate to a parliamentary draftsman exactly who had drafted a particular Bill. It really is very difficult to understand what they mean sometimes. I always look at Hansard, I always look at the Blue Books, I always look at everything I can in order to see what is meant and as I was a Member of the House of Commons for a long time of course I never let on for an instant that I had read the stuff. I produced it as an argument of my own, as if I had thought of it myself. I only took the trouble because I could not do the work in any other way.

As a matter of fact, I should like to let your Lordships into a secret. If you were to go upstairs and you were a fly on the wall in one of those judicial committees that we have up there, where distinguished members of the Bar like the noble Viscount come to address us, you would be quite surprised how much we read. We read the old reports. I remember that there was a case—and if the noble Viscount is interested I can remember its name. It was a common law case of murder. The name was Hyams and if he likes to look at the speeches in the Hyams case he will see a dissenting judgment by my noble and learned friend Lord Diplock. Brilliant! It cites in extenso the report of the Law Reform Commission of 1849 as the basis of his reasoning. The idea that we do not read these things is quite rubbish.

There was one awful case I sat in myself. It was a judicial case; I cannot remember its name but I think it was the NSPCC case, when three members of the court and one of the counsel (but not me) had all sat on the committee which had generated the legislation we were examining. There was Mr. David Hirst from the Bar and if you think that they did not discuss what was really meant, you are living in a fool's paradise. The idea that this is going to generate a lot of expensive work—dear, dear solicitors; dear, dear, barristers, do grow up!

On Question, amendment agreed to.

[Amendment No. 3 not moved.]

Clause 1, as amended, agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with the amendments.