§ 4.33 p.m.
§ Debate resumed.
§ Lord Denham
My Lords, I am not encroaching on the very strict ration of time remaining for this very short debate because the clock will not be restarted until I sit down, but I thought it might be useful to inform your Lordships at this point that there are exactly 56 minutes left before my noble and learned friend must rise to reply. As there are six Back-Bench speakers left, the ration per speaker, if each speaker is not to encroach on the time of his successors, is nine minutes exactly. My noble and learned friend must rise to reply at exactly 5.29 p.m., or before.
§ Lord Mancroft
My Lords, back from the surplus of butter to the surplus of legislation, I take careful note of what my noble friend the Chief Whip said and will, therefore, stick to one point and one point only. It is my view that one of the reasons why we have such a complexity and gallimaufry of legislation is our wasteful misuse of parliametary time. We invariably end any major and complex Bill in an undignified canter. I should like to see some arrangement—and it should not be beyond the wit of a man, or woman, to devise it—whereby just before the Bill passes on to the statute book it is withdrawn from Parliament to allow all those concerned, the draftsment in particular, to have a quiet look for a few days at what was originally a workable Bill and has become an unworkable Act.
Let me consider a mythical Bill—the Rats and Mice Bill. It was in the manifesto—it does not matter which party—and was mentioned in the Queen's Speech. It has gone before the Home Affairs Committee and the Cabinet and has been discussed. It is well known to Parliament, the public, the press and the Civil Service. It is then handed over to the parliamentary draftsmen to draft. I listened with care and admiration, as I always do, to the noble and learned Lord Denning's splendid swipe at the parliamentary draftsment but I hope that he will be fair and remember that the great Sir Benjamin Cherry's drafting of the 1925 property legislation is still regarded widely as an absolute masterpiece. But to concede his point. I remind him of the ill-fated Shops Bill, which I was personally concerned with at the Dispatch Box and which never became an Act becuause your Lordships would have none of it. It took 19 lines of the draftman's sparkling prose to establish the principle that only a Mohammedon or a practising Jew could operate as a barber in Scotland on a Sunday.
The Bill, then, comes before the House. I hope it 626 comes before this House first, because the more legislation which comes before your Lordships' House first, the better. It then goes through seven stages, in five of which it is capable of amendment. It then goes to another place where, as we have already been told this afternoon, there is the risk of all-night sittings, legislating in the small hours of the morning and possibly a filibuster—if that is not an unparliamentary word to use—and possibly even a sudden parliamentary crisis.
Then comes the ping-pong between the two Houses—"that the Lords do agree with the Commons in the said amendment", and so on. Finally the Whips start getting worried and say, "If we do not have the Bill by next Wednesday it will be lost." It is at that stage that I suggest the Bill is sent back to the draftsmen and that it is said to them and all others concerned, "Is it not a fact that Clause 17 and Clause 32 cancel each other out completely? Is Clause 45 so complex that not even the noble and learned Lord, Lord Denning, can make anything of it?" I believe that such an arrangement would mean that the Bill might, with luck, become a much more workable Act. We will have had the chance to sit back and look at it quietly to see whether we can tidy it up before it finally gets on to the statute book.
We have been talking about a public Bill. The Private Bill, of course, is a law unto itself. But what about the Private Member's Bill? This is quite an important Bill in your Lordships' House. I remember listening carefully to the noble Baroness who leads us warning us in the debate on the Queen's Speech that we were not to indulge in Private Member's legislation which was liable to waste the time of the House and would probably not even get on the statute book. I think that she perhaps had in mind the ancient Greek City of Locris. In the city of Locris, to introduce a bill in the Locrian parliament, one stood in the market place with a rope around one's neck. If the bill was passed everyone said "Well done, that man. Bully for you!" If it did not pass, one was hanged. To paraphrase Dr. Johnson, it would concentrate the parliamentary draftsman's mind wonderfully if he knew that a piece of bad draftsmanship would lead him to the scaffold in a fortnight.
The noble Baroness the Leader of the House might even have had me in mind, because the first Private Member's Bill I ever introduced to your Lordships' House took 11 years to get on the statute book. This was the Marriage Enabling Act which enables one to marry one's divorced wife's sister. Not many of your Lordships cared for my draftsmanship. I did it myself without any help, and that is probably why. There was one person who approved of it—a gentleman who lived in Manchester. He read about my Bill in the Manchester Guardian, as it then was. He had been accidentally married to his sister-in-law for several years owing to an oversight of the registrar. The marriage had not proved happy. He then proved, to himself, that the marriage was not legal. With a sigh of relief he folded the Manchester Guardian and went to live with a barmaid in Bridlington.
I make this final plea. If the parliamentary draftsman, who I think is a much underrated man, a very taxed and skilful man, is brought in, as he is, to help with the Public Bills, can he not occasionally be 627 brought in to help with the Private Member's Bills? We know that help is occasionally given behind the scenes. We also know that if a Member has a Bill in his pocket which the Government approve of, they will, when no one is looking, put the draftsman at his disposal. I should like to see that done much more formally and frequently so that the standard of Private Member's legislation is raised and is able to contribute much more than it does to parliamentary progress in your Lordships' House. I must give the Chief Whip one warning: I have not only one Private Member's Bill in my pocket at the moment; I have two.
§ 4.40 p.m.
§ Lord Molloy
My Lords, this has been for me an extraordinarily interesting debate because I thought that, not being a lawyer, all I could do was put the views of ordinary people. Then to my absolute delight I heard part of the speech that I had hoped to make and the theme of it put by the noble and learned Lord, Lord Denning. I wish to comment on what he had to say later.
First, I should like very sincerely to compliment the noble Lord, Lord Renton, not merely on introducing this particular debate, but on the manner in which he did so. It was not particularly difficult for him. I have listened to him in another place tearing the draftsmen's work to pieces and putting in much more sensible phrases designed for ordinary people to understand. Therefore, no one is better equipped than the noble Lord, Lord Renton, to introduce this issue.
However, we are now in a very difficult situation and we have somehow or other to sail between the views of the noble and learned Lord, Lord Denning, and the defence of the noble Lord who has just sat down. It will not be easy. When one speaks to ordinary people they, like the Master of the Rolls, say: "What appalling language you people use when you are making Acts of Parliament". When we go to members of the same profession as the noble and learned Lord, Lord Denning, they say, "We must do it this way because"—to use their language—"there are so many shyster lawyers who wriggle around and escape the meaning of the Act"; and they are right.
When the noble and learned Lord, Lord Denning, spoke about the secondary picketing of the steelworkers he was, in my judgement, correct. I do not agree with the law, but it is the law. If the law is not adhered to—it does not matter how much we disagree with it and have opportunity to seek to change it—we are on a very dangerous course indeed. It may be hurtful; it may be harmful; it may be annoying, but it has been passed by Parliament and that is the law. I view it in the same way as ordinary people. Ordinary people say to me, "There is no problem in sueing a couple of chaps in our street who are on the dole and cannot pay their rent; no problem at all. There is no problem in sueing someone and having him before the courts because he cannot pay his rates; no problem at all. But you cannot get any of those who yearly twist this nation out of £9 billion as regards money they ought to pay in taxes. You catch the working class man because he pays his tax through PAYE." They ask us, "What are you going to do about it? Is this going to go on and on? You make your pious speeches in the 628 House of Lords and in the other place about the villainy of the black economy, but the only thing you do"—and I ask the noble and learned Lord, Lord Denning to bear with me—"is to stop a good policy like the 'fares fair' policy of the GLC which did so much good in taking traffic off the roads and allowing ordinary people to travel cheaply". That was not the fault of the Law Lords who had to examine it; they had to examine the law. So, in that instance, it would appear that the parliamentary draftsmen had fallen down.
That is the point that I wish your Lordships to understand and I believe that it is the very issue to which the noble Lord, Lord Renton. referred when he talked about the quality of legislation. There must be something wrong one way or the other with the quality of legislation when it is examined by top lawyers, drawing massive fees, employed by the Greater London Council, who are told, "Yes, you can go ahead with this," and then their mates a little higher up the tree say, "You have broken the law". That is the type of thing that brings Parliament into ridicule and that is the main issue when we are talking about the quality of legislation.
As the noble and learned Lord, Lord Denning, so correctly said, ordinary folk cannot understand why we do not use simple, ordinary language. I have to give the argument of QCs and judges. Although the sharks in the City—those patriots who take their money out of this island (money which they have made here) to escape taxation—want a bigger army, a bigger navy and many more missiles, they expect the man in the street to pay for them. That is the ordinary person's view of some of our legislation and that is what we have to look at.
We all make utterances from time to time which are quoted, and if you are particularly eminent you are widely quoted. I received so many letters when working in the other place when I said that people might disagree with what we had decided to do, but we had made it quite clear in our manifesto. I have heard our present Prime Minister say the same thing. Ordinary people say to me, "When you lot say that, the Master of the Rolls tells us all to disregard manifestos". So not only legislation but sometimes the way in which we act has to be considered extremely carefully. So those people—not the ordinary people—who wish to cheat and the crooks who wish to take advantage either of the law or, if I may say so, of a lapsus linguae will latch on to something which will help to show that we really do not know what we are talking about in this place.
I believe that it is that kind of thing that brings Parliament into disgrace, and that is the fundamental point that was made by the noble Lord, Lord Renton, so ably supported by the noble and learned Lord, Lord Denning. I am delighted to support the noble and learned Lord, Lord Denning, in what he said with regard to using ordinary language. I do not believe that it is beyond the wit of draftsmen or the capacity of this Parliament to use ordinary language and not allow the shyster lawyers to make fools of us in the courts and fools of those who are sitting in judgment. That is a point that we must consider very seriously.
Many people do not argue so much that there are 629 too many laws. I was astounded when the noble Lord, Lord Renton, mentioned that we are trying to operate something like 3,500 Acts. I expect that all your Lordships have heard from time to time—I certainly used to hear this and I know that the noble Lord, Lord Renton, and those who have served in the other place have heard it—someone who is aggrieved about something saying, "There ought to be a law for it" or "There ought to be a law agin it". So when it suits their purpose they want more laws and they also want less laws. I can readily understand their difficulties.
Time will not allow me to go into some of the matters that I wanted to raise about EEC legislation, which wants looking at very hard indeed. It seems that at times it clashes with our legislation and then we are compelled by the Treaty of Rome. I understand that one can read on the front of any copy of the Treaty of Rome a little warning like that on a packet of cigarettes that the wording and the interpretation of the Treaty of Rome cannot be guaranteed as being accurate. Ordinary folk say, "What are you doing about this? This is the kind ofthing you should be looking at. We want to know where we stand." You must not say, "Well, people like you shouldn't go and buy the Treaty of Rome and look at it and study it; this is a matter for parliamentary draftsmen and lawyers." You cannot give them that answer.
I want to turn very briefly in the limited time that I have left to legal aid. This also comes within the ambit of the quality of law and the quality of parliamentary intention. I do not understand legal aid and I am waiting for that great day to come when some eminent lawyer will understand it. I worked in the other place and had so many interpretations from so many renowned figures of the legal profession that I can quite understand why ordinary folk do not understand it. As the noble Lord, Lord Renton, said there are many lawyers who really do not understand it because of its complicated language. If Parliament had the desire that ordinary people should be helped, then I believe we must agree that we must make the quality of law a high quality and be interested in what happens after we pass the laws. We should make sure that the law is not only carried out properly in criminal cases, but is carried out properly as regards helping people in the way good laws should.
I come to my last point. It will come in due time, but, with the massive, complex legislation that we have, ordinary people get into trouble even if they have signed a contract. We all know cases of what I call shyster contracts containing small print; they can get away with that. But if you do not pay your rates you are inside, pronto, with no messing. If you work a flanker on millions of people and cheat them, it would appear that even with all this complex law we cannot do anything about it and you get away with it. This is the sort of thing which we have to look at very carefully. I hope that the day is not too far distant when we can help ordinary people in the complexities of their lives with regard to the law. Perhaps local authorities might employ a number of solicitors to whom people could go and receive help and guidance, just as they do when they call a doctor under the NHS. If that were to happen, I believe it would compel us to ensure that the quality of our law was improved to the satisfaction of most people.
§ 4.51 p.m.
§ Lord Simon of Glaisdale
My Lords I should like to associate myself with the congratulations to the noble Lord, Lord Renton, and with the gratitude that has been expressed. If, owing to the shortage of time, I make my submissions to your Lordships rather baldly, I hope that your Lordships will acquit me of discourtesy.
First, I want to deal with the quantity of legislation. I venture to think that that is very much bound up with the philosophy of government. The quantity of legislation tends to vary directly with the quantity of government, and unless a determined effort is made to devolve decision-making to the individuals concerned we shall continue to have the evils of quantity of which complaint has been made this afternoon. I so much agreed with the noble Lord, Lord Molloy, that it is most important that the ordinary person should be able to follow that law, if only because ignorance of the law is no excuse.
Secondly, departments very naturally—because it is part of their job—like to tidy up the sphere of responsibility for which they stand. They all have a number of useful Bills on their shelves waiting for implementation, and those jostle with each other before the Future Legislation Committee. I venture to suggest that the test of the Future Legislation Committee should not be, "Is this Bill, on balance, advantageous?", but, "Is this Bill really necessary?" Obviously, a test like that is the one which is applied in the final Session of a Parliament, and is probably one congenial to the political philosophy of the present Government. So I suggest that it might be more generally applied by those who make the complaints and who hear the complaints that have been made today.
The third matter which tends to excessive quantity is the ambition of politicians. Undoubtedly, reputations can be made by the ministerial handling of a complex and important Bill. One has only to think of Disraeli, Lloyd George and Neville Chamberlain. But, there again, it really rests with the Future Legislation Committee to be critical and cynical in that regard.
The fourth matter is that of reducing the volume of existing legislation. Consolidation has been dealt with by noble Lords who preceded me, but I want to ask about statute law revision Bills and statute law repeal Bills. A few years ago they were annual, and very valuable that was. I know that that was linked to the production of Statutes in Force, but perhaps my noble and learned friend on the Woolsack could tell us the present position.
My noble and learned friend Lord Elwyn-Jones was rather inclined to suggest that the Consolidation Committee could do more in the way of repeal, but, in fact, the broadest criterion that they can apply that is "of no further utility"; all the other criteria are much narrower. It seems to me impossible for a Joint Select Committee, such as that committee, to apply that to, say, the Shops Acts, the Truck Acts, the licensing laws or, even more, the Rent Acts, where the judgment is a political one. Therefore, it seems to me that if it is to be left to private Members to deal in those spheres, the private Member can legitimately look to the help of the department and the draftsmen. Essentially, I should apply that to Law Commission reforms; and I 631 entirely agreed with what the noble Lord, Lord Hooson, said about that.
Then I come to the quality of legislation. It has already been emphasised that we would have much better legislation as to quality if, as my noble and learned friend Lord Denning said and as was said by the noble lord, Lord Molloy, the draftsmen would draft in general terms and in simple language. A notable memorandum was submitted to the Renton Committee by my noble and learned friends the Lord President and Lord Justice Clerk, which pointed out that the courts are perfectly capable of and perfectly used to applying general principles to particular instances. If the drafting were done as to general principles, then the legislation would not only be more perspicuous, but would also be very much shorter and much fairer to the ordinary citizen, and, I venture to think, in the end much more effective for the Ministerial purpose.
The noble Lord, Lord Renton, was inclined to exempt Finance Acts, where he said that it is impossible to avoid a good deal of detail. I respectfully suggest that "impossible" is too strong a word. Other countries manage to achieve much simpler Finance Bills and Finance Acts than we do. They do it in two ways. We seek absolute fiscal justice for the individual. Many other jurisdictions in the Anglo-American sphere of law take the rough with the smooth; that there should be general fiscal equity, but it may be that in a particular instance one taxpayer may be under a greater fiscal liability than another. The other is general legislation against tax avoidance instead of the particular instance. Again, other Commonwealth legislatures legislate in that way, and so does the United States. If that were done, even a Finance Act would be much simpler.
Finally, I would say this. A lot of trouble is sometimes caused by a Minister being asked what is the meaning of a provision, and saying, it being a case of doubt, that his understanding, his advice, is so-and-so. We had one example of that in the case of the Race Relations Act, when it was a matter of great complaint and great hurt, I know, to subjects who thought that the law had failed to reach them when the law was declared to be as the Minister had said was his understanding, but it had not been written into the Act. I suggest that it should be a parliamentary convention that in that situation the law should be made absolutely clear.
§ 5.1 p.m.
§ Lord Airedale
My Lords, sandwiched as I am between two distinguished lawyers I only make bold to make one point in relation to statutory instruments. The Joint Committee on Statutory Instruments, in paragraph 25 of their 6th Report for the Session 1981/82, mentioned that some statutory instruments are drafted in relation to other documents, so that the instrument itself is scarcely comprehensible unless you have available the other document to which it refers. The committee expressed the opinion that in these instances the second document required ought to be available at the Stationery Office along with the statutory instrument itself.
Yesterday there came before the Joint Committee 632 an instrument which referred to two other documents. If a member of the public had gone to the Stationery Office in Kingsway for the instrument and had read the explanatory note to it, he would have found that the second document he needed could be obtained from Pentonville Road in north London and the third document he needed could be obtained from the Home Office Library near Waterloo. I do not call that a satisfactory service to the public.
I know that it is the will of Parliament that the Stationery Office is to be regarded as a commercial organisation rather than as a provider of services to the public, but there are exceptions. I understand that Hansard is not a commercial proposition and needs to be subsidised. I hope that in other fields, too. the service to the public aspect is not being lost sight of in the anxiety of the Stationery Office to turn itself into a commercial success, so I hope that this recommendation by the Joint Committee finds favour and is going to be implemented.
§ 5.4 p.m.
§ Lord Campbell of Alloway
My Lords, may I too express my own gratitude among your Lordships to my noble friend Lord Renton not only for having introduced this important subject for debate, but for having adorned it with his unrivalled expertise. But must we not first seek to identify the causes in this deterioration of quality in legislation before we may propose a cure? Must we not also, as appears from so many of your Lordships' speeches, retain the true and essential perspective that the maintenance of the rule of law requires—no, my Lords, demands—intelligibility? Is it not much to be doubted whether this volume of legislation as such, whether these extant deadwood statutes as such, cause this deterioration in quality as distinct from constituting mere contributory factors?
I would have submitted that the causes are essentially three. Is not the intricate draftsmanship with which public Bills are cast in their legal mould, the direct result of the nature of the instructions from Government departments on the one hand, and the way in which these are interpreted by the draftsmen on the other? True, we do not know the draftsmen's side of the story. I can assure the noble Lord, Lord Molloy, that assuredly they are not to be called, or referred to as. shyster lawyers.
Let me give one example on each side of this fence. The nature of the departmental instruction is the sort of "Yes, Minister" syndrome of what they call judge proofing statutes, which is done so as to seek to ensure that there shall be no judicial discretion in the implementation of the intendment. This has been referred to as the unbridled passion for detail; the vain search for certainty—and that by my noble friend Lord Renton; and the noble and learned Lord, Lord Denning, also adverted to this.
On the other side of the fence, giving one example of each side, there is the position of the parliamentary draftsmen who resort to the practice of relatively recent origin of amending existing statutes instead of repealing and re-enacting in amended form. They seem to pay no regard to what has been referred to by my noble friend Lord Renton as the statement of 633 principle, the purpose clauses, and the forward looking concept towards intelligibility. That is surely one of the causes. Another must be the dearth of parliamentary draftsmen, who are desperately overworked and who, not only by the nature of their instructions but by virtue of their calling, are predisposed to over-indulge in these arcane and esoteric practices. On Private Bills the withholding of the services of parliamentary draftsmen, save on the authority of Her Majesty's Government, is, in submission, a cause of poor quality in legislation.
If such be the causes, or if such be three of the causes, what about the remedies? I take aboard most of the suggestions made by the noble and learned Lord, Lord Elwyn-Jones. I also adopt, with respect, if I may, the observations of the noble Lord, Lord Hooson, where he takes the point that the machinery warrants an overhaul. At one point your Lordships may have thought that he was saying that it really wanted replacement. Taking aboard his point on machinery, perhaps we should set up some system of quality control, with powers to discourage resort to those practices. A Joint Standing Committee? Perhaps. The six months concept of the noble Lord Lord Hodson? Perhaps. Enlarge the powers of the Joint Consolidation Committee? Perhaps. But something should be done.
Secondly, could we not—although we have made considerable progress in this sphere—intensify the activities of the Law Commission on recommendations for appeal and implement such recommendations? As the noble and learned Lord, Lord Simon of Glaisdale, said, there is considerable scope here for producing legislation which satisfies the needs of Government departments, and the noble and learned Lord speaks from experience.
Perhaps we should take on more parliamentary counsel or, as my noble friend Lord Mancroft suggested, make parliamentary counsel available on Private Members' Bills, at all events before the Committee stage. Perhaps we could use the two parliamentary counsel who are seconded to the Law Commission. That would follow the practice of many other countries, such as Canada; a posting box might be set up, or an office, within the precincts of the Palace. Consideration might also be given to the practice adopted since 1971 in the other place, of providing expenses for drafting for the first 10 Bills of the Private Members' ballot. That situation could be updated to meet modern requirements and be extended to your Lordships' House.
If the co-ordination and supervision of such remedial measures envisages some new dimension of Government, so be it. The security of the quality of legislation is, in submission, the debt of Government a debt long overdue for payment and a debt which must now be paid, for if the signs of distress in the foundations of our society are not treated, then surely the stone shall crumble beyond the reach of all hope of restoration.
§ 5.14 p.m.
§ Lord Scarman
My Lords, I shall not stand long between the House and the speech to which we are looking forward from the noble and learned Lord on the Woolsack. First, I must apologise to the House and 634 my noble friend Lord Renton for being unable to be present for the early stages of the debate. As I think has been explained, but I repeat, I was detained by judicial duty.
All I wish to do at this late stage is to suggest that the House, and indeed our country, should concentrate more on the quality of legislation than protest about its quantity. English law has—it is a very good thing it has—been based more and more on statute law. Without statute law, our society could not have moved from its rural condition at the beginning of the 19th century, through the industrial revolution, through two world wars in the 20th century and now be negotiating the technological and electronic revolution. It is quite unreal to say, "Let us reduce the quantity of statute law". The truth of the matter is that the modern scientific, social, economic and political changes in our society have been made possible, have been controlled and have been fitted into our society thanks to statute law, and we must keep that in mind.
The common law is delightful, but it is now of marginal importance only. Similarly the other source of law. the decisions of the judges, again, can play only a peripheral part in keeping the law in touch with modern developments. That is not to denigrate either the common law or the judges; it is just stating facts which must be plain to everyone if one just examines social, economic and political history. So quality is what matters, and the House is clear that it wants statutes drafted in more general terms, with more concentration on principle, and it wants to avoid the over-specificity of so much of our legislative drafting.
How can that be done? First, not by taking a swipe at the draftsmen. What we must do—this is all I shall do in the next two minutes—is just look at the genesis of a statute and see where we can introduce improvements. I am taking, of course, public Bills emanating from Government. First, there is the incubation stage, when they are being considered by Ministers, by departments and, in a preliminary way, by draftsmen. If at that stage a decision could be taken to keep the statute to the principle of the matter, it would help; but bear in mind what the implication of that is, and one has to accept the implication even though it is unpleasant for many.
If one is to legislate in general terms and on principle, then one must allow for a great increase in statutory instruments; namely, delegated legislation dealing with the detail of the matter. Why should one not do that, if it keeps the statute book clear and devoted to principle? And of course, if one goes wrong with statutory instruments, it is very much easier to correct them than it is to correct by amendment or repeal a statute. As I say, one has to accept a great increase in statutory instruments. They are, of course, either affirmatively or negatively under the control of Parliament, but that has to be accepted. I suggest it is a worthwhile price to pay to get our statutes in that intelligible form for which the noble Lord, Lord Molloy, rightly contended; namely, so that they can be understood by a reasonably intelligent, comprehensively educated Englishman.
The second period is when the statute is going through Parliament. It is no longer being incubated; changing the metaphor a little, it is being pricked out 635 in the allotment garden, and now Parliament is looking at it in principle and at the amendment stage. I do not think I would advocate—I am no parliamentarian, except in my latter years—any abridgement of the study of legislation in Committee and the very careful study it gets. I believe this is peculiar to this country; other countries take it on trust, so long as they can have a debate about the principle. But I have now sat long enough in your Lordships' House to realise the immense value of the Committee stage, and we must accept that. However, if the legislation comes before the Committee as legislation of principle, then, the House in Committee will take its cue, and I think that that is the contribution that the two Houses will have to make.
Granted, therefore, that we can get legislation in simpler, broader, more principled terms, then it is enacted, and then it is handed over to the judges. The judges have a role in the legislative process—I would not say that that is quite right; rather they have a role in the process of ensuring that we have a clear statute book. Can one trust the judges? Will they really do what Parliament says? That was of course one of the purposes of my ill-fated Interpretation of Legislation Bill, about which I shall say no more because time is not here.
I agree with the noble Lord, Lord Molloy, and with the noble and learned Lord, Lord Denning, that, if one has statutes so drafted, the courts will have no difficulty in divining the purpose of Parliament, and interpreting them accordingly. I do not know what the Court of Appeal does, but I should like to assure the noble and learned Lord, Lord Denning, that the House of Lords has said that the basic principle of statutory interpretation is purposive; and that is enough if the statutes are drafted in the correct way. It can be done, and I suggest that it should be done. It needs merely a little self-restraint and self-discipline on the part of all the various institutions of our constitution.
§ 5.22 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, the speech to which I have just listened from my noble and learned friend Lord Scarman has I think relieved me of a very great deal that I would otherwise have wanted to say. I shall not repeat it. It will be fresh in the minds of the House. I do not think that I could improve upon it, and therefore I shall say that with almost everything that my noble and learned friend said, I absolutely agree. I am sure that noble Lords who have borne with the debate will agree that we have had a most interesting, able, and at times witty, series of speeches. The lot of the Minister who has to reply to these short debates is that of the advocatus diaboli. Before I deal with the instructions from my client, I should like to thank the noble Lord, Lord Harris of High Cross, for reminding the House that I have occasionally adopted a different role; and that is not the role for which I am cast this afternoon.
In my attempt to speak on behalf of my client I had it in mind to say, first, that statutory instruments serve a useful purpose, despite their vast quantity, but that has already been said by my noble and learned friend Lord Scarman. I have it also in mind to say that the number of statutes is as a matter of fact diminishing. 636 There were 3,680 in force in 1964. In 1974–10 years later—there were only 3,480, and as at 1981 (which is as far as we can get it) there were only 3,109 in force. That is a steady diminution, and it reflects the important work of statute law revision, to which my noble friend Lord Renton referred and to which there have been repeated references during the course of the debate.
I think I was asked by my noble and learned friend Lord Simon of Glaisdale—but if not, I was asked by another Lord—what is the present state of play about statute law revision. We have had 10 important such Acts on the statute book as the work of the Law Commission. I hope to have another ready for next Session, and that will get rid of a good deal of obsolete legislation. As the noble and learned Lords, Lord Elwyn-Jones and Lord Gardiner, will realise, we are working from the back upwards as we approach the present. The present work of statute law revision has been slightly held up by the fact that its principal instrument has been acting as the Secretary of the Law Commission and therefore has been able to address less of his time to this process.
Forty-eight of the Acts of this Parliament are consolidation Acts, and that. I think my noble friend Lord Renton will agree, is a thoroughly good thing. Therefore, speaking again on behalf of my client. I have to point out that about a quarter of the 3,000-odd pages that we passed in the last years have been consolidation pages, and so the terrifying figures of the quantity of statutues that we passed are in fact by that amount less to be counted. That is a fair deduction to put on the credit side of the account.
That said, I now have to go back and admit that for more than, I think, 300 years—I think from the time of Lord Bacon, but certainly for a very long time indeed—the statute law of this country has been held to be a scandal. It is at this stage that I want to pose a question. Are we (and I do not think that noble Lords who have spoken have quite grappled with this question) in the presence of a problem of drafting? In that case, of course, the attack of the noble and learned Lord, Lord Denning, on the draftsmen would be justified. Are we in the presence of a problem of interpretation? I shall not elaborate that unduly because it has not been very widely canvassed during the present debate. But I must add that I shared the regret of my noble and learned friend Lord Scarman at the rather frosty reception given to his own Bill, incorporating part of the Law Commission's recommendations, when he introduced it in two previous Sessions. On that, I would say only—and I think I am echoing, or perhaps expanding, what the noble and learned Lord, Lord Scarman, said—that I think the courts are gradually edging their way towards a more purposive interpretation.
When I first went to the Bar—which alas! was 50 years ago—literalism dominated the whole scene. It was not only in statute—that was only a particular example—but also in the construction of wills and the construction of contracts. Even with an unscrupulous young man trying to get the best he could out of his client's case, not even in the county court was much extraneous evidence admitted as to what the parties 637 intended to achieve by a written contract.
However, I think it has been recognised, gradually, slowly, inch by inch, yet inevitably, that one cannot interpret any words, however apparently plain, except in a matrix of surrounding fact and circumstance; and that applies to statute no less than to anything else. I absolutely agree with my noble and learned friend when he says that the House of Lords has fairly laid it down that there is an important purposive element in any attempt at statutory construction which, as the noble and learned Lord, Lord Denning, said, represents about 90 per cent, of the work which comes before the appellate courts of this country.
There is, therefore, an interpretative element in the problem which we are discussing; but this brings me to the last part of my question. It is this. Are we not really in the presence of a political and constitutional problem which is endemic in our parliamentary institution to a greater extent than has wholly been realised? The noble Lord, Lord Hooson, in a most constructive, interesting and fresh-minded speech, thought that it was a matter of mere mechanics. I think that there is an aspect of that which one ought to consider but I do not think that it is a question of mere mechanics.
The first thing that I would say about it is that we must not forget that we are one of the largest, if not the largest, unitary states in the world. A lot of legislation which appears on our statute book would be legislated in the states of the United States, in the federal parts of the Soviet Union, in the states of the Commonwealth of Australia or in the provinces of Canada. But we have to legislate at Westminster for Scotland and we have to legislate on a vast number of things which in a federal system, for which we are almost quantitatively suited whatever may be the constitutional desirability of it, we would not have to legislate upon. Therefore, the pressure on us is infinitely greater and inevitably greater so long as we retain that situation.
The second thing that I would say—and here, again, I echo something which the noble and learned Lord, Lord Scarman, said—is that in the process of legislation the rights of the individual Member and the rights of the Opposition in the presence of an omnicompetent Parliament without a written constitution inevitably involve both a degree of precision and a degree of time consumption which at first sight might be seen to be time wholly wasted. The right of freedom is the right to oppose; and there are more ways of opposing than one. For instance, I have sat on the Opposition Benches as well as on the Government Benches; and if I wanted to stop the business of a Government of which I disapproved, I would very often take a lot of time improving in detail legislation to which I had no radical objection—and then there would be less time for the wicked things that they were doing over on the opposite Bench.
I know that I am not the only parliamentarian who has thought this thing out. How often when a Minister has said, "The courts will take a sensible view of this" have I heard the words from the Back Benches, "Well, let us have it written into the statute"? How often have I heard from Government supporters the words, "Of course, my noble friend (or my honourable friend) 638 would not act in this way. But he will not always be in power. Suppose a Minister comes who has not his charm and his integrity. What use he could make of these loose and broad words!" How often have I heard that?
These are basically not questions of law, they are not questions of interpretation, they are not questions of judicial work and they are not questions of draftsmanship. They are constitutional questions. I pause for a moment, so as not to take up too much of your Lordships' time, simply to point out that our process of legislation differs fundamentally from that of other free countries. For instance, in France they have the Conseil d'Etât. They have what are called the travaux préparatoires to which reference can be made at a later stage in order to interpret the actual statute. The principle is basically this: that you get some of the bugs out of the legislation before you let it loose on Parliament at all.
Incidentally, when people question the use of your Lordships' House, quite apart from questions at issue between the parties, I myself occasionally point out that if legislation is introduced into this House and here goes through the process of Committee and Report, we often find that it is passed in a much more acceptable form and with far less consumption of parliamentary time when it reaches the other place. Again, this is an example of what I am seeking to say, which is that the problem is not a technical one so much as a constitutional one and that we should remember that much of what we are complaining of is actually due to the balances and checks which we have come to accept as part of our constitutional liberty. I think we should be willing to recognise the truth with which my noble and learned friend Lord Scarman began, in saying that statute law, whether you like it or not, is the fabric upon which the modern state is founded.
Having accepted that, I still have to admit what was delicately hinted at by more speakers than one—and I know that my noble friend Lord Renton and my noble and learned friend Lord Simon of Glaisdale put the matter in rather guarded language—and that is the machismo of Ministers and ministerial departments. Here I must be very cautious remembering where I stand and the duties of party loyalty which surround me on every side. But I have noticed—and I am bound to say that I have noticed—that under both Labour Governments and Conservative Governments there are individual departments and individual Ministers who seem to take a pride in the quantity of legislation they introduce. It enables them to exert their "clout" as among their colleagues, it enables them to leave a legacy on the statute book, and it may even lead to hopes of promotion to another department where they may be less trouble. These are not technical problems; these are the realities of the political life we live.
I would only end by saying that I am not, I hope, as complacent as I may have contrived to sound. It is a remarkable fact that in 1911, which was in the heyday of one of the most remarkable groups of Cabinet Ministers which ever governed this country—and they happened to be Liberals; and one thinks of the galaxy of talent they then commanded: Lloyd George. Winston and Grey and dozens of others—they passed 450 pages of general public legislation. Compare that 639 with the figures which we are now discussing, which are that per Session 3,000-odd pages of general legislation are produced, and between 10,000 and 13,000 pages of necessary statutory instruments. Then I think we have got to recognise that if I have not proposed a remedy, and if I have made a plea in mitigation, at least my noble friend Lord Renton has got a problem to place before Parliament and he is to be congratulated on having done so.
§ Lord Renton
My Lords, my noble and learned friend the Lord Chancellor, from the great depth of his experience, has regaled and entertained us, especially when he was speaking in his capacity as devil's advocate. I shall come back in a moment to one or two of the things that he said. But, before I go any further, I should like to thank every one of those noble and learned Lords and noble Lords who have spoken in this debate, whether they be laymen, Queen's Counsel, members of the Outer Bar or noble and learned Lords of such great experience as Lord Denning, Lord Scarman and others.
There is, strangely enough, a consensus. I think that I can best express it by presuming to summarise what my noble and learned friend the Lord Chancellor says. We take for granted that there has been a lot of legislation, and there will always be a lot of legislation. We depend upon it; it is the instrument of policy. We accept the fact that there are Ministers who will press for legislation and, rightly or wrongly—perhaps sometimes wrongly—pride themselves upon the fact of it. We accept the fact that our Parliament has its own strange habits with which in our free democracy we dare not tamper because we must give the Opposition and Private Members on both sides of both Houses the opportunity of commenting.
On all those aspects we can agree; but we can also agree from, in fact, every speech made in this debate that the quality of legislation could be improved even given the matrix, the parliamentary procedure, without altering it, if only there were a little more trust on the part of all of us in the concept of more simple language being used. To those who say, "We shall merely be surrendering our power to the judges", I say this: let them make their choice of evils, if they think that it is an evil. The judges—goodness knows!—are troubled more than enough, more than they should be, by the complexity of legislation which our habits produce. Might it not be that they would be troubled a little less if shorter, plainer language with statements of principle and purpose clauses were used?
Several noble and learned Lords have been kind enough to say that I have tried to do something about all this. I shall go on trying and I shall go on trying with the encouragement which this debate has given. I beg leave to withdraw my Motion for even short Papers.
§ Motion for Papers, by leave, withdrawn.