§ 3.6 p.m.
§ Lord Renton rose to call attention to the volume of legislation including statutory instruments, to the desirability of repealing statutes which have outlived their purpose or have become unnecessary, and to the need to achieve yet more improvement in the quality of legislation; and to move for Papers.
§ The noble Lord said: My Lords, the importance of this matter is, I am sure your Lordships will feel, indicated by the long and impressive list of speakers, including no fewer than five noble and learned Lords. It is of significance that my noble and learned friend the Lord Chancellor will reply to the debate. I rejoice in that because he has always shown great understanding of this difficult problem, and I trust your Lordships will give him plenty of time for his reply, which could be of great importance. I am glad that his predecessor, the noble and learned Lord, Lord Elwyn-Jones, will be speaking from the Front Bench for the main Opposition party.
§ Seven years ago, the noble and learned Lord, Lord Simon of Glaisdale, opened a full day's debate in your Lordships' House on the report of the Committee on the Preparation of Legislation, of which I had the honour to be chairman. Our recommendations were well received on both sides of both Houses and by both branches of the legal profession. We drew attention to the vast volume of legislation. Today, the total number of Acts of Parliament in force is about the same as it was then—nearly 3,500—and that is in spite of new statutes having been introduced and in spite of the repealing Acts we have each Session. But the relentless growth of legislation in the last 18 years, whichever party is in power, continues at a rate of over 2,000 pages a year of Statutes at Large. In 1980, 2,876 pages were added to the statute book; last year, 1981, not so many were added—we do not have the collected statutes printed yet—but it will be well over 2,000 again.
§ In whatever way the statute book is presented—and it is now presented in three or four different ways—it fills at least 50 fat volumes. Also, about 14,000 statutory instruments are in force today. Much of our legislation is so complex, obscure and indeed incomprehensible that even skilled professional advisers cannot say for certain what it means, and it may be to their advantage sometimes to have to say so.
§ The fact that our legislation is so massive is surely due not only to the total number of statutes that we 606 may introduce each Session, but also to the great length of many of them, which is caused by our unbridled passion for detail, of which more anon. Compared with all other European Parliaments, we are over-zealous to a high degree and we spend far more time on legislation each year than any other European Parliament.
§ No doubt most statutes are genuinely needed when they are passed. They are needed either to implement Government policy, or because Members of both Houses thought that it was in the public interest to fill gaps in the law or to bring the law up to date in our dynamic modern society. Also, each Session we need consolidation Acts and repealing Acts, and I am glad to say that we get them; we have been getting them in increased measure. However, is it not questionable whether all our existing statutes are really necessary? Besides repealing clearly spent and obsolete laws each year, should we not get rid of statutes, some of which were passed in our lifetime and are taken for granted, which experience has now shown to be unenforceable, ineffective, unworkable, or even socially damaging? After all, under our constitution nearly every Act of Parliament is but an experiment.
§ As an example of what I mean. I should like to mention that in the last Session my noble friend Lady Trumpington persuaded a majority of your Lordships to repeal some Shops Acts. That is the kind of thing that perhaps we could give more attention to doing. Examples that I might give would cause controversy, I accept, and for that reason I shall not give any examples; I want to avoid controversy. Instead, I should now like to concentrate on my main theme, which is the need to improve further the quality of legislation.
§ Since our committee reported in May 1975 some of our major recommendations have been implemented, and I am sure that the members of our committee are grateful for that. The pace of consolidation has been increased, for example. The series known as Statutes in Force has been completed. Computers are now officially in use for retrieval of past statutory provisions, and that aids the process of consolidation. It also aids those who have to advise on the law. Textual amendment, rather than non-textual amendment, has become the usual (I can almost say the regular) method; but, alas! there are one or two exceptions—bad ones. More explanatory material is given to us, and we can now obtain notes on clauses from the Vote Office. I understand that it was the noble and learned Lord, Lord Gardiner, who, when he was Lord Chancellor, enabled that first to be done. So far as I, as a mere English lawyer, am able to say, Scottish legislation is now dealt with more in its own right, instead of being moulded into a United Kingdom context and pattern, and that is an advance. But perhaps my noble friend Lord Selkirk will have something to say about that later.
§ All of those improvements are good. Perhaps one of the best of them, from which your Lordships have benefited, is that we recommended that one of the Scottish Law Officers should be a Member or your Lordships' House, and so we have had the great advantage of having the noble and learned Lord, Lord Mackay of Clashfern, and his predecessors, on our Front Bench.607
§ We recommended that there should be more parliamentary draftsmen recruited and trained, as a high priority. We recommended that, not in order to produce still more legislation but in order to spread the load among them—they are heavily pressed—and to give them more time for preparing Bills. There has been a slight improvement, but perhaps when he replies my noble and learned friend the Lord Chancellor can let us know whether there has been any substantial movement with regard to that matter.
§ We suggested that there should be a new Interpretation Act on the lines of the Bill of the noble and learned Lord, Lord Scarman, which your Lordships passed in the last Session, in a very truncated form, but which alas! was blocked in another place. It would help greatly, too, if there were implemented our recommendation that the Lord Chancellor's Statute Law Committee should keep the structure and language of statutes under continuous review, and report to Parliament at least once every three years the progress made. That recommendation has not yet been implemented, and I hope that we may hear that the Lord Chancellor has not lost sight of it.
Surely the main cause of our statutes being too lengthy and too complex is our habit of legislating in too much detail. This is done in an attempt to achieve certainty of legal effect, so that people may know where they stand in any situation which might arise, and thus avoid troubling the courts. That is the philosophy underlying the practice. But very often that practice has just the opposite effect, because excessive detail leads to complexity, obscurity and uncertainty—uncertainty which might have been avoided if we had legislated in broad terms, setting out the principles and, if necessary, stating our purpose. As the great Sir Edward Coke said, nearly 400 years ago:
The lawmakers could not possibly set down all cases in express terms".
§ But that is just what we have been doing for the past 100 years or more—and increasingly, I think.
§ I hope I am not presuming if I explain what I mean by a statement of principle and a purpose clause. A statement of principle is an expression of the law in broad and general terms. A purpose clause expresses Parliament's intention underlying the legislation, whether it is in general terms or is very detailed. Our committee acknowledged the need for detail in various circumstances, and although we said that the use of statements of principle should be encouraged we did not insist that they should always be used. We recommended that statements of purpose should be used when they are the most convenient way of clarifying the intended scope and effect of detailed legislation, especially of fiscal legislation, where it is virtually impossible to avoid a good deal of detail, so that the citizen knows exactly what taxes he has to pay. We said that all that unavoidable detail, wherever it comes, would be much better understood if its purpose were clearly stated. I regret to say that our advice has not been followed.
In his autobiography, Sir Harold Kent quotes a former chief parliamentary counsel as saying:
The intelligibility of a Bill is in inverse proportion to its chance of being right!
§ I hope that that is not still a working principle in 608 parliamentary counsel's office. But most of the draftsmen seem to be allergic both to statements of principal and to purpose clauses, and they continue to give us masses of detail. However, perhaps they are more sinned against than sinning, for Ministers, and all of us in both Houses, are responsible for our legislation, and we really must not expect the legal result of everything foreseeable to be spelt out in a Bill. It is that which causes the chaos. Perhaps one day the noble and learned Lord, Lord Denning, will give us a prize for plain English in a statute and perhaps a prize for brevity. We do not get many prizes at the moment.
§ Brevity is possible. After all, Moses, in robust ancient Hebrew, no doubt, said: "Thou shalt not steal"—and everyone knew what he meant. We have the Theft Act 1968 in 36 clauses spread over 20 pages—an Act which, because of its uncertainty has had to be considered by the Court of Appeal on no fewer than 30 or more occasions. Another example is the Employment Act 1980, Section 17, which is very detailed and cannot be understood except by reference to the 1974 Act as amended by the 1976 Act. It deals with secondary action in trade disputes. It has been considered on several occasions by the Court of Appeal and twice even by the Judicial Committee of your Lordships' House, and some strong judicial criticism has been made of it. Recently, Sir John Donaldson, presiding over the Court of Appeal as Master of the Rolls in the case of Merkur Island Shipping Corporation v. Loughton and Ors., said, in reference to Section 17, that if the rule of law was to be upheld people must live in accordance with the rules and know what they are. He made a plea to Parliament, when legislating in circumstances directly affecting the man in the street or on the shop floor, to give as high a priority to clarity and simplicity of expression as to refinements of policy.
§ My Lords, the moment has come for me to conclude, and I do so by saying this. If our Acts of Parliament cannot be understood even by clever experts it not only brings the law into contempt, it brings Parliament into contempt. It is a disservice to our democracy; it weakens the rights of the individual; it eases the way for wrongdoers and it places honest, humble people at the mercy of the state. In the name of reason and justice, Let's get it straight! I beg to move for "short" Papers.
§ 3.23 p.m.
§ Lord Elwyn-Jones
My Lords, I hasten to assure the noble Lord, Lord Renton, that not only do my right honourable friends and I not find the Motion objectionable, but, on the contrary, we agree wholeheartedly with if, so that in this debate, at any rate, I doubt whether we shall be in the presence of much political controversy although there may be some intellectual lack of agreement. The noble Lord, Lord Renton, is to be thanked for introducing a subject to which he has frequently and properly drawn our attention ever since the report of the distinguished committee named after him and over which he presided came out. I make no complaint about his persistence. It is right that we should constantly keep the matters he has mentioned under review.
The first matter which he has raised in his Motion is the volume of legislation. It is the case that it has 609 increased, is increasing, and I have no doubt most people would complete the famous resolution and say that it ought to be diminished. Everyone seems to want less legislation. My experience in Government was that almost every department wants more. Each Minister sought priority for the invaluable, the indispensable offering that his department was bringing before the country for the common weal and for the common public interest.
The corrida (if that is the right word) in the Legislative Committee at the beginning of each parliamentary Session was tremendous. No mercy was shown. It was rather like the famous contest between two eisteddfod choirs where, at the end, one said to the other, "You beat us hollow on 'Lift up your heads, ye gates of brass'; but we gave you hell on 'Love Divine, all loves excelling'." This fight for a place in the legislative programme was one which was always rather painful (if I may speak for myself) for the Lord Chancellor in trying to find time for law reform. It is for us to congratulate the present noble and learned Lord the Lord Chancellor that he has got away with so much so far. I tried my best, too.
So the problem is really to find place for what it is claimed must go into the legislative programme. As Labour Governments are generally reforming governments they may have a tendency to introduce more Bills to achieve social justice and other reforms than others. As Conservative Governments spend much of their time trying to undo the good work of their predecessors, that too imposes legislative liabilities upon it; and so the ding-dong continues for legislative time.
It is the case that Governments of all political complexions since the war have intervened more and more in the social life of the citizen, in the country's economy and industrial relations. It is the case that more and more benefits have sought to be conferred with, correspondingly increasing obligations that have got to be met—all giving rise to the necessity of clarity and precision in defining both sides of the formula. All this development makes increasing demands upon the rarest of all parliamentary commodities, time. If there were less legislation and more parliamentary time, no doubt the quality of our legislation would be better and, incidentally, we might also have more time to debate and discuss the great unsolved issues of our time, like the threat of nuclear world catastrophe and our industrial decline. Parliament is, after all, the forum of the nation where the great issues of public policy ought to be discussed and decided. Yet we often spend more time on the minutiae of Bills and the paragraphs in their schedules than on issues of great national and international concern.
One thing that I think we cannot fairly be called upon to do is to sit many longer hours. As it is, if I may say so, and particularly in another place, much of the legislation is done there in the small watches of the night, and indeed a good deal of it comes here without really any serious consideration through the effluxion of time in another place. It often comes here also at very short notice, so that our ability to examine the matter is limited by time. I wonder whether something could be done to reduce the time taken to consider legislation on the Floor of the House. Getting non-controversial 610 law reform Bills through another place by dispensing with a Second Reading stage on the Floor of the House was a valuable improvement. Indeed, a number of important law reforms might well have fallen by the wayside if that Second Reading procedure did not exist. The Whips would be saying "No go" to most or many law reform measures, I fear.
Sensible time limits on speeches of the kinds accepted in this House in short debates could perhaps be applied more extensively. I remember a recent debate on the vaccine damage question which was introduced by the noble Lord, Lord Campbell of Alloway. The restraint which speakers accepted through the timetable announced by the Chief Whip enabled a large number of Members of the House to take part and to do so economically in terms of time—indeed, so much so that in winding up the debate the noble and learned Lord the Lord Chancellor had ample time to treat us to one of his inimitable tours d'horizon on the subject. I hope that he does not mind my putting it in that way. I think it was how he put it himself, or he used words to that effect. I doubt whether the time discipline imposed on that occasion meant that those who took part felt unable to say in substance all that they really wanted to say.
§ Lord Harvington
My Lords, I wonder whether the noble and learned Lord would advise the greater use of Standing Committees in this House to save the time of this House, in the manner in which they do in another place?
§ Lord Elwyn-Jones
My Lords, that introduces a very interesting and important suggestion. It would depart a good deal from the main pattern of procedure in the House; but there is no reason why it should not be looked at. One of the difficulties that 1 sec in a proliferation of committees is that the debate and discussion moves from the Chamber to the remote distant corners of the establishment and the House tends to become as empty as another House has tended to become since the proliferation of committees there. But I may be treading on dangerous ground in saying that. It is certainly a matter that we might consider.
When we come to the field of statutory instruments, to which the noble Lord's Motion refers, there we are in this difficulty: statutory instruments cannot be amended; they can only be approved or negatived. There some of the most remarkable confusion and difficulty of interpretation in the law arises. In the case of Davey v. Leeds Corporation, Lord Justice Harman said this:To reach a conclusion on this matter involved the court in wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way on each side. I regarded it at one time, I must confess, as a slough of despond through which the court would never drag its feet but I have, by leaping from tussock to tussock as best I might, eventually, pale and exhausted, reached the other side where I find myself, I am glad to say. at the same point as that arrived at with more agility by Lord Denning, the Master of the Rolls".There is indeed a painful field about which no doubt a good deal more can be done. Unfortunately, the complexity of our legislation makes statutory instruments introduced on the strength, the authority, of the Secretary of State inescapable. Already the size of the 611 statute book, as the noble Lord said, is vast. If each of those statutory instruments had to be embodied in the Bills themselves, the burden would be absolutely intolerable. So I am afraid that we have to put up with statutory instruments, like them or not. Whether we could do more and give more assistance about making them more comprehensible, is another matter. Then there is another point which I ought to mention in considering the weight of responsibility that falls upon us both governmentally and in Parliament. On top of our own domestic legislation, we have the imposed legislation of the European Economic Community to add to the pressures on parliamentary time.
The second issue raised by the noble Lord, Lord Renton, in his Motion is the desirability of repealing statutes which have outlived their purpose or become unnecessary. Here we have made progress—and very great progress—and I think it is right to proclaim it. This is principally due to the great benefits that we have had from the work of the Law Commissions which were set up by the Labour Administration (if I make a party political point) and with the driving force of my noble and learned friend Lord Gardiner when he was Lord Chancellor. The Law Commissions Act 1965 imposed on the Law Commission and the Scottish Law Commission the statutory duty to prepare draft Bills for giving effect to their programmes of statute law revision and consolidation. Under the leadership of a distinguished line of chairmen, beginning with the noble and learned Lord, Lord Scarman, whose name I see is on the list of speakers but who no doubt is presently detained elsewhere——
§ Lord Elwyn-Jones
I am much obliged. My Lords, I knew that he would be on good public business of some kind. The noble and learned Lord will give us the benefit of his opinions on this matter. The result of the work of the Law Commissions has been a fruitful harvest of repeals, and a good deal of the dross in the statute book has been removed, although admittedly a good deal is still left. It was my pleasure when I was Lord Chancellor to introduce some of the Bills giving effect to statute law repeals. They were rich in legal and social history, like the legislation which enabled a frightened Government to exile the Tolpuddle martyrs, or the nasty little Act by which King Henry VIII sought to do injury to the estate of Sir Thomas More. All remained on the statute book through the generations. They have now gone, but there is still much more to be done.
But the output of the Law Commissions has not merely repealed the obsolete in our statute book in a very wide range of legislation. By applying in this field the test whether the continuance in force of a Bill served a useful purpose, much more has been achieved than that. The work of the Law Commissions has been supplemented by the hard and expert work of the Joint Committee on Consolidation Bills, to whose members we owe a very great deal. Governmental Bills themselves often take on board the elimination of redundant law. So we have not stood still.
612 As to the quality of legislation, it is good at any rate that the noble Lord, Lord Renton, has not blamed the draftsmen for this. I often wish that we could hear their side of the story: how adequate may be the instructions they have received from Ministers as to what goes into the Bills; how much time they are given to prepare them. If your Lordships will give me a moment more time than I ought to be taking after my initial words, the difficulties of the draftsmen were admirably expressed by Mr. Justice Stephen, who had much experience of drafting Bills, when he said:Precision is essential to everyone who has ever had. as I have had on many occasions, to draft Acts of Parliament which, although they may be easy to understand, people continually try to misunderstand and in which, therefore, it is not enough to attain to a degree of precision which a person in good faith can understand: but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it".That is really a measure of the responsibility which falls upon the parliamentary draftsman and which he tries to carry out. Here again we come back to the clash between quantity and quality, and I certainly await with great interest the views expressed by those who have less to do with the actual process of producing legislation and more to do with interpreting it.
§ 3.41 p.m.
§ Lord Hooson
My Lords, from these Benches, I should like to congratulate the noble Lord, Lord Renton, on initiating this debate. It is appropriate that he should do so bearing in mind his distinguished record in this field and his chairmanship of the committee which reported in 1975. This debate enables me, as the appointed spokesman for my party on the law and also on behalf of the Alliance, to say certain things today. I am not going to try to spell out the difficulties in this sphere. One can read innumerable articles and innumerable debates in your Lordships' House and in another place which state the difficulties. What I want to state is our approach to the problem and the remedies which we would seek to solve the problems outlined in the noble Lord's speech.
First, as to our approach, it seems to us that in a complex but changing society it is ridiculous that law reform, which is long overdue and which would command the general support of the people of this country and of the vast majority of Members of both Houses of Parliament—law reform which has been carefully inquired into in depth by the Law Commission—should be held up for years because of our failure in this House and in the other place to overhaul our own machinery.
With the greatest respect, I do not agree with the noble and learned Lord, Lord Elwyn-Jones—though I very often do agree with him on other things—that it is absence of time which is responsible for the great hold-up in legislation. It is the misuse of time rather than the absence of time, because very often the great and momentous matters which he outlined, for example, the threat of nuclear war, are inadequately debated in this House and in the other place. Why?—because we clutter up our proceedings by dealing with the minutiae of legal reform, and so on. Therefore I put forward the view that it is the mechanics of the matter that really hold up what the vast 613 majority of us agree would be very desirable reforms.
I have been authorised to say, on behalf of the Alliance as a whole, that if there was an Alliance Government in this country one of our top priorities would be an overhaul of the machinery of Parliament in a democratically acceptable way, so as to smooth the path of law reform and to enable the Law Commission to be used more effectively than hitherto so that it can discharge all its duties as set out in the Law Commission Act 1965. I think that the setting up of the Law Commission was a tremendous landmark in the development of law reform in this country. I shall quote the duty of the Law Commissions, as set out in that Act:It shall be the duty of each of the Commissions to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law. the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law.If I may refer to that part of the noble Lord's Motion today to which I particularly wish to address myself—that part which reads:and to the need to achieve yet more improvement in the quality of legislation"—that is surely what the general words of the duty of the Law Commission referred to.
I yield to no one in my admiration for the enormous achievements of the noble and learned Lord, Lord Denning, in the field of judicial reform, but I do not think that his particular means of achieving reform and of keeping the law abreast of the times through the medium of the courts is sufficient in our day. It is very necessary, and under our proposals I think there would be greater scope for judicial interpretation than there is at the present time; but it was very necessary to have the Law Commissions. Over the 17 years of their existence, both here and in Scotland, I think they have gone a long way to achieve those objectives which the noble and learned Lord, Lord Wilberforce, suggested in the debates should be their objectives, namely, to act as a fresh stimulus to law reform and to enter into a new dimension of law reform rather than to expand the existing methods. I think it is right to acknowledge, as I see the noble and learned Lord, Lord Gardiner, sitting in his place, that it was an enormous achievement for any Lord Chancellor to get that particular Act on to the statute book.
Of course, I have to resist the temptation in this debate to deal with my own views on the further development and expension of the Law Commission. I would simply indicate that I think other law reform agencies such as the Law Reform Committee and the Criminal Law Revision Committee should be brought under its umbrella and that it should have a particular relationship with Royal Commissions and should be available for advice, and so on, to Royal Commissions. But rather, I want to confine myself to the issue of how to ensure that Parliament can reform its own procedures so as to enable the country to benefit more effectively from the Law Commission's work, because every citizen of this country has a vested interest in the simplification and modernisation of the law. If I may say so with great respect, both in this House and in the 614 other place, it is very easy to make fun of the way in which we enact our present legislation, and drafting counsel are usually the butt of many of these remarks. We really should look at our own system, our own machinery, and consider how we are going to reform it.
We shall be publishing our agreed views early in the New Year on how the Alliance would propose to change the machinery, but I want to give an indication of my own line of thought in this matter, and in particular as regards the question of the quality of our legislation—simplifying it, reforming it and getting rid of obsolete legislation. I am quite sure that the implementation of law reform—the Law Commission's recommendations and other proposals—really depends on a haphazard selection. I do not think there is any systematic method of selecting the priorities for a legislative proposal. It seems to me there are three particular ways in which, for example, a recommended Bill by the Law Commission, accompanied by its report, might have a chance of becoming law.
The first is if the Lord Chancellor of the day takes a personal interest in a particular reform. Then, it is fairly certain to make some progress if he can twist the arms of his fellows in the Cabinet and get time for it. Secondly, if there is, at the beginning or end of a Parliament and sometimes at the end of a parliamentary Session, some "slack water", then the departments can push forward their favourite Bills and the Lord Chancellor's Department can also push forward a Bill. For example, when a new Government has been elected and before it transforms its manifesto (or in some cases its non-manifesto) into legislative proposals, there is normally time for the introduction of law reform measures. Thirdly, of course, a private Member can take up a particular Law Commission Bill, which is already drafted for him, and enlist the support of the necessary Government department to get it pushed through.
But this haphazard arrangement is not good enough for the modern day. There should be a systematic and continuous process, both on the aspect of consultation and on the enactment of such legislation. I am indebted to a number of meetings with various people, and to lectures and annual reports by the Law Commissioners for setting out the problems, as they have seen them; and, indeed, to various articles. I want to deal with some of the problems that arise, and with the kind of solutions that I see to them.
The criticism is often made that departments of state, though the Law Commission's working papers are submitted to them, are loath to comment or criticise until the Law Commission has, in fact, reported. Therefore, the Law Commission very often makes its official report and drafts its Bill, without knowing what will be the attitude of the particular Government department that is affected. We think there should be a requirement that the Government department which is affected should provide detailed comment and criticism within six months, at the outside, following receipt of a working paper by the Law Commission. I ask the question rhetorically: why should the Law Commission be made to publish its final report in ignorance of the views of an affected department, and to draft its Bill accordingly?
I have derived very considerable help from the 615 Australian Senate report on this subject. The report is entitled Reforming the Law: Report of the Senate Standing Committee on Constitutional and Legal Affairs. This report deserves very careful consideration in this House; and we have been thinking along these lines. Of course, your Lordships have Standing Order No. 48 which reads:There shall be a Select Committee consisting of twelve Lords, who shall be appointed on the recommendation of the Lord Chancellor at the commencement of every session, to join with a Committee of the House of Commons as the Joint Committee on Consolidation etc. Bills",and then its powers are defined. It sems to me first, that the powers of this Joint Committee of both Houses could be widened very considerably. This committee has the ability to consider certain enactments emanating from the Law Commission, but its powers are very curtailed and I am sure that everybody who has looked into it will agree that they are very limited. It seems to me that these powers could be very greatly extended and the committee could be enlarged very considerably.
Secondly, we think that the Law Commission's working papers should be sent to this committee at the same time as the working papers are submitted to Government departments. Thirdly, this committee should have the power at that stage to call witnesses, hear evidence and direct that further consultation should take place. Of course, further consultation would not be necessary in most cases, but there are certain aspects of law reform that are of immense importance to the general public, and the Joint Committee should have the ability and power to order further consultation.
Fourthly, at the conlusion of this process, the Government of the day should be called upon to indicate whether they accept the reform, in principle, and the Opposition parties, who would have representatives on the committee, could also indicate whether they accept the reform, in principle. The Law Commission could then prepare its final report and Bill. By that time, a great deal of consultation would have taken place, the views of the political parties would be established and the decks would be cleared for the progress of the Bill in the future. Then the final report of the Law Commission would go back to the Joint Committee, who would indicate to Parliament how that legislation should then proceed: first, by the normal procedure of enactment; or, secondly, by way of Second Reading Committee procedure, which has been used in certain cases.
In many instances, it would not be necessary to take the detail of Bills on the Floor of this House, as we do at the present time, nor would it be necessary in the House of Commons. On the other hand, where the Joint Committee have clearly indicated that the matters are controversial, a different kind of pathway through Parliament could be envisaged for a Bill. It would, therefore, be possible to isolate those matters which were truly of controversy, and we could use the time of the Houses of Parliament much more effectively.
Lastly, we would suggest—and these are only suggestions at the moment—that for a particular type of legislation, so certified by the Joint Committee, it 616 would be possible to carry over from one Session to another the legislation which had not concluded its course through Parliament; save, of course, when a general election intervened. It seems that this would, therefore, be a much better way of utilising the time of Parliament. It is useless for our House to say, "So much legislation is held up for lack of time, because, through our parliamentary machinery, we do not make time available for it." That is the truth of the matter.
I should like to continue developing our views on other matters, but I shall not trespass upon your Lordships' time, save to say that I am sure that, in all parts of the House, there is general support for the sentiment expressed by the noble Lord, Lord Renton, in his Motion today. It is in the interests of this House, and in the interests of Parliament, that we make sure that our machinery is effective to meet the demands of our modern age.
§ 3.57 p.m.
§ Lord Denning
My Lords, I would endorse every word spoken by my noble friend Lord Renton. When I was called to the Bar nearly 60 years ago, the legislation for one year was in a volume of 300 pages. In 1980, the legislation was contained in four big volumes of 3,000 pages. Of the cases that come before the Court of Appeal or the higher courts for determination, 90 per cent. are on the interpretation of a statute; not on our common law any more, but on the interpretation of a statute.
I must say, going on to the second branch, that our legislation and our statutes are still appalling in their complexity. They ought to be in simple, plain language, so that all can understand. A day or two ago, I had to go to an event sponsored by the National Consumer Council on plain English. The award that I gave for plain English, if you please, was to the Customs and Excise for one of their pamphlets on VAT. The booby prize—the Golden Bull, as they called it—went to the parliamentary draftsmen for a statute passed by both Houses as recently as 28th October of this year. You would think it was a simple enough matter to increase the old fine of £400 to £1,000, owing to inflation, but it takes Section 38 of the Criminal Justice Act 1982, which is two whole pages. Subsection (4), which received the prize, contains 10 lines of print without a single comma, semi-colon or full stop. I shall read it:(4) An enactment in which section 31(6) and (7) of the Criminal Law Act 1977 (pre-1949 enactments) produced the same fine or maximum fine for different convictions shall be treated for the purposes of this section as if there were omitted from it so much of it as before 29th July 1977 had the effect that a person guilty of an offence under it was liable on summary conviction to a fine or maximum fine less than the highest fine or maximum fine to which he would have been liable if his conviction had satisfied the conditions required for the imposition of the highest fine or maximum fine.What appalling nonsense for anybody to interpret!
I do not stop there. Your Lordships are aware of a much more practical subject which affects every person in this land: secondary action, and whether it is lawful or unlawful in the course of a strike. We had two cases in the Court of Appeal, Express Newspapers v. MacShane and Duport v. Sirs, on the steel strike. In the Court of Appeal we held that the secondary action 617 which had taken place was unlawful. There had been picketing of private steelmakers who had no dispute at all with their staff. Unfortunately, in their judicial capacity the House of Lords held that the Court of Appeal was wrong. Nevertheless, the good advisers of the Government thought that the Court of Appeal was right. In Section 17 of the Employment Act 1980 they sought to restore our decision. But what a mess they made of it.
Section 17—I say it judicially—is the most tortuous section I have ever read. It defies understanding. It comprises two pages of print. The present Master of the Rolls has condemned it as quite unintelligible to any- body, even to a lawyer except when he has spent several hours analysing each subsection. That is not the right way to legislate upon such an important topic as this, which affects every individual in the land. There is nothing in the Employment Act 1982 which makes it any better, so the courts have still got to struggle with it. I hope they will manage it.
It comes to this, that language ought to be simple and clear. There ought to be not long but short sentences. There should be a few commas and semicolons in sentences. There should be simple words. There should not be too much detail. One of the troubles is that with the best of motives the draftsmen try to think of every contingency that may happen and then to cover it by means of wording like this. It is impossible to think of everything that will happen in the future. All this ought to be in simple language, expressing principles. There is no need to go into all this detail. The courts should then be allowed to deal with it, as I am sure they have in the past.
An example from the Treaty of Rome concerns the way in which their treaties are dealt with and interpreted. They call it—an awful phrase—the aetiological method or the schematic method. They mean that one ought to be guided by the purpose and intention of the legislature. That is the way in which it ought to be interpreted. The Bill of the noble and learned Lord, Lord Scarman, did not get through on this point. I hope that in future judges will look more and more for the purpose and intention of the legislature. The draftsmen will therefore have to avoid all the detail and get down to simple principles. I endorse everything that the noble Lord, Lord Renton, has said.
§ 4.4 p.m.
The Earl of Selkirk
My Lords, it is a great honour to speak after the noble and learned Lord, Lord Denning. Whatever his loss to the courts may be, it will be a great advantage to us in this House to have the benefit of his wisdom and experience on many subjects. I want in particular to thank the noble Lord, Lord Renton, for opening the debate but, much more, to thank him for the great work he has done over a very long period on this subject. His contribution is one for which Parliament should be extremely grateful. I have no doubt he will continue it. We are grateful to him for doing so.
His recommendations on Scottish legislation have resulted in an improvement, so far as I am able to judge. Whether or not Scottish departments are brought in at an earlier stage of the discussion of Bills 618 affecting both England and Scotland, I cannot say. I shall be interested if subsequently the noble and learned Lord the Lord Chancellor is able to comment on that subject.
I want to restrict the scope of the debate for a moment by dealing with one specific case which has irritated me on a number of occasions. Whenever a principal Act is amended for the second time the draftsmen say, "It must be amended in terms of the Act as amended". There is reference to the principal Act, but the words to be inserted fit the principal Act, as amended. In terms of the principal Act that is complete nonsense. There is no ready means of finding your way from the principal Act to the amendment to it. I admit that there are the statutes in force, but it is a labour to go through those and makes the examination of statutes, not only in this House but elsewhere, afterwards, much more difficult. I believe that some reference to the first amendment ought to be made.
We have made great progress in certain directions. I pay my respects, as have other speakers, to the noble and learned Lord, Lord Gardiner, and the Law Commission. We have also done great work on consolidation. I have had the privilege on more than one occasion of serving on the Consolidation Committee and I am deeply impressed by the quality of the draftsmen who have to deal with consolidation. Nevertheless, I am afraid the blunt answer is that this is not enough. The noble Lord, Lord Renton, quoted Pope. May I quote the great Scottish institutional writer, Lord Stair. He said that the quality of Scottish legislation was based on custom. He went on to say, "We are not involved in the labyrinth of many and much statutes". People must give more implicit faith to their judges and to their lawyers. That was 300 years ago. We are right in that situation now. We have long, labyrinthine statutes which we do not know how to handle.
I found one aspect of the report of the noble Lord, Lord Renton, very depressing. He stated frankly and clearly what the problem is and what he thought ought to be done. Then he gave an absolutely conclusive answer as to why it cannot be done. That is very much the position in which we find ourselves today. Wherever we go we find that there is a good objection. As I read it, the problem today is that we have in politics four radical parties. They are all radical in their own way. They all want to do a lot and the main method of change is through the law. In order to get the timing right there will be a conflict between the radical parties and the possibility, within a reasonable time, of doing what you want to do. The only way which has been suggested—the noble Lord, Lord Hooson, also suggested it—is to take some of the work away from Parliament. But thereby you diminish the sovereignty of Parliament. That is the essence of the problem.
Are we to achieve better legislation by taking the work away from Parliament and thereby to reduce the sovereignty of Parliament? I do not believe anybody would accept that suggestion. Let me take Lord Denning's example. If one goes to the Library and looks at the statute books, one finds that 100 years ago there was just one slimmish volume. It was broken into two in the 1920s and into three in the 1970s. In 619 the early decades of the next century there will be four, and no doubt at the end of the next century there will be five. That will bring the whole concept of the law into disrepute. Nobody can possibly be expected to read great volumes and still retain respect for the law.
We have got to think even more radically about what we are going to do if we are to retain respect. Many statutes could certainly be made neater, tidier and simpler. Much of the work will have to be taken away from Parliament, in one way or another, in order to get the time. The noble and learned Lord, Lord Elwyn-Jones, spoke about time. The noble Lord, Lord Hooson, said that there was not time, but then he went on to say that perhaps there was time. I do not know. The only way one could make time would be by making a Session last two years instead of one year. But I doubt if one could trust any Government not to fill a two-year Session equally full of legislation, and I believe that Parliament would not stand for that.
What else can be done? Much of our legislation is a matter of organisation. It has to do with running education, with running hospitals, with running museums—as was the case yesterday. Many of these matters do not give rise to great problems of jurisprudence. They are essentially questions of organisation. Perhaps some of these matters could be dealt with, at least in their preliminary stages, in a different way. I will not add anything more because we are running a little short of time. But I do believe that limited improvements, even in wording, will not be adequate to meet the problem we are facing today. If change is to take place, we have not the time in the current Session to carry it through.
§ 4.11 p.m.
§ Lord Harris of High Cross
My Lords, I join others in thanking the noble Lord, Lord Renton, for initiating this debate. I must express the joy that I, and I am sure several others, felt at the lucid brevity of the speech made by the noble and learned Lord, Lord Denning. Perhaps I should start almost as a maiden speaker, by asking for the indulgence of noble and learned Lords who bring such legal distinction to our discussion of the quantity and quality of legislation. As a mere economist, my approach will be somewhat more down to earth—although others may wish to describe it rather differently. As the noble and learned Lord, Lord Elwyn-Jones partly implied, much of the indiscriminate multiplication of statutes has aimed to improve our economic and social welfare, yet it has conspicuously failed to usher in the promised millenium.
In economics we have a serviceable law of diminishing marginal utility. It is the neglected foundation of much economic analysis and tells us that increasing supplies tend to decrease the value or satisfaction we derive from any line of consumption. So it has proved with legislation; the growing volume has led to diminishing utility. There is, fortunately, no dispute among us about the long run tendency for the quantity of legislation to increase. With 3,100 general public Acts in force plus 13,000 general statutory instruments, it is surely not inappropriate to talk of an 620 over-governed nation sinking in a morass of regulation and control—much of it wholly incomprehensible to the layman and, apparently, even to the noble and learned Lord, Lord Denning.
I am not a wild anarchist. I regard law as the indispensible buttress of all our prized freedoms, but one can have too much even of so good a thing. We have carried the necessary ordinances to the point of inordinacy. It is an example of the same undisciplined tendency to excess which Sir William Rees-Mogg has blamed for monetary inflation. The lesson for me is that we urgently need to restore limits to both the activity and the ambitions of modern government.
I believe that the best guide for the reforming efforts of lawyers, economists and others may be found in the seminal trilogy by Professor Hayek entitled Law, Legislation and Liberty. Even if time allowed, I am not qualified to do justice to Professor Hayek's grand thesis. But I found helpful his distinction between law. as the evolution of general rules of just conduct, and legislation, as the often arbitrary commands of Governments vested with temporary authority to impose their will or even their whims. Thus legislation is often linked only rhetorically with any universal, permanent principles of justice, of equity or indeed of law itself in its original meaning.
Hayek is not the only economic philosopher to diagnose legislative incontinence as the occupational hazard of politicians in a democracy. The economic analysis of politics starts from the commonplace observation that politicians are not wholly disinterested in gaining votes. Of course they have long-term ideals, and I understand that some even have principles. But such intellectual baggage tends to get mislaid or left behind in their natural haste to win a majority. The simplest way to amass votes at one time was for politicians to buy them. But since open corruption was made illegal—and was anyway expensive—the next best thing was to buy votes with promissory notes, politely referred to as election pledges.
Instead of bidding for individual votes, parties have come to seek wholesale support from large or powerful groups such as trade unionists, farmers, old-age pensioners, tenants, owner-occupiers, and other significant minorities. The method is to pass laws conferring privileges or immunities on sufficient special interest groups to build up a winning coalition of votes. One reason why politicians are vulnerable to pressure from lobbies of sectional interests is that democratic governments are thought to be omnipotent. They have unlimited powers to pass laws to remedy every passing grievance, real or imagined. As we now see, when the ruling party withholds its favours, an irresponsible Opposition will stand ready to promise to oblige after the next election. Thus, unlimited government has unchained insupportable demands of the populace and has brought nominally all-powerful government to the brink of impotence.
By a different route to that taken by the noble and learned Lord on the Woolsack in his remarkable Dimbleby Lecture, I have come to follow Professor Hayek in favouring a written constitution. Its aim would be to entrench limited government—perhaps even by specifying limits on the discretion of politicians to spend, to tax, to expropriate, and maybe 621 even to discriminate in favour of sectional interests.
All that is for discussion and for the future. Meanwhile, I should like from the Cross-Benches to commend the efforts of the All-Party Repeal Group, which encouraged the noble Lord, Lord Renton, to bring this debate before us. The Repeal Group offers a modest prospect of relief from excessive legislation by seeking the outright repeal of unnecessary or restrictive statutes. As the noble Lord, Lord Renton, said, we have made a start with the Bill of the noble Baroness Lady Trumpington. to end the Shops Act. After the Recess, there will be a chance to debate the Second Readings of the Rent (Abolition of Control) Bill introduced by the noble Lord, Lord Vaizey, and the Truck Acts (Repeal) Bill, which I introduced recently. Like Ko-Ko in "The Mikado" we have a little list of society offenders that never would be missed, and we would welcome suggestions for statutes to be added to our list of worthy candidates for repeal.