HL Deb 21 May 1985 vol 464 cc163-70

3.6 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I beg to move that this Bill be now read a second time.

This is the first of the four Bills on the Order Paper in my name. If I may, I shall speak to all four together and then move the other three formally, together with the consequential Motion in connection with the fourth. This has been a mammoth task both for the Law Commission and the draftsman. To both I offer my own gratitude and I trust also the thanks and compliments of the House.

The Housing Acts were last consolidated in the Session of 1957–58, in the Housing Act 1957 and the Housing (Financial Provisions) Act 1958. That was the fourth consolidation in this area of the law. Since then, there have been 17 further Housing Acts, most recently the Housing and Building Control Act 1984 and the Housing Defects Acts 1984. Some idea of the number of Acts involved may be gathered from the fact that the repeal schedule for this consolidation makes repeals in some 85 Acts of Parliament, and the present Housing Bill and Housing Associations Bill take up nearly 550 pages, compared with 198 pages in the 1957–58 consolidation.

The size of the task and the fact that material was drawn from so many different Acts over such a long interval has necessitated the adoption of a radical approach. There was no alternative but to redraft the legislation in a consistent, modern style. The topics within the scope of the consolidation are, broadly speaking, those which give rise to functions of public authorities: public sector housing, housing conditions and housing subsidies, grants, loans and other financial matters.

As well as provisions of the Housing Acts strictly so called, the opportunity has been taken to incorporate so much of the Small Dwelling Acquisition Acts 1899 to 1923 as is still operative and the provisions of the Public Health Act 1936 relating to common lodging houses. Provisions relating to "landlord and tenant" and housing benefits (which are more closely related to social security legislation) have been excluded from the main consolidation.

Essentially this is a single Bill consolidation. The main Housing Bill contains by far the greater part of the provisions within the scope of the consolidation. Two subsidiary topics are, however, separately dealt with and these are contained in the Housing Associations Bill and the Landlord and Tenant Bill. The legislation relating to housing associations is a distinct sub-division of the law on this topic. The relevant provisions also extend to Scotland and are, in significant respects, not capable of being stated separately for England and Wales on the one hand and for Scotland on the other. It would be inconvenient and possibly even distasteful for the Scottish reader to have to refer to an Act of Parliament otherwise entirely English in order to discover the relevant Scottish law. Accordingly, the subject has been separately dealt with in a separate Bill which extends to the whole of Great Britain.

The reason for the separate Landlord and Tenant Bill is that it is necessary for the purposes of the arrangement of the statute book to distinguish the subject under title "Housing" from the subject under title "Landlord and Tenant". This Bill consolidates a number of provisions of the Housing Acts which fall under the latter heading, so that it would not have been appropriate to include them in the main Housing Bill. They are, however, of considerable practical importance, and it would therefore be undesirable to take the alternative course and leave them isolated in various Housing Acts otherwise entirely, or almost entirely, now to be repealed. In fact, the provisions of the Landlord and Tenant Bill form a coherent sub-division of the law of landlord and tenant, consisting of those provisions which relate specifically to residential accommodation.

Fourthly, and I hope finally, there is the Housing (Consequential Provisions) Bill. This deals with a number of technical matters arising from the three substantive Bills: repeals, consequential amendments, transitional (natters and savings. They are of secondary importance and more conveniently contained together in a separate Bill.

In the course of preparing the consolidation a number of anomalies and inconsistencies came to light. The Law Commission has, in accordance with its usual practice, issued a report making some 38 recommendations for minor technical amendments to enable the law to be stated in a clear and straightforward fashion. These include a number of proposals for repeal of enactments either obsolete or no longer of practical utility. Therefore, the Bills before your Lordships give effect to these but they will, of course, in due course fall to be considered by the Joint Committee if the Second Reading is passed.

Finally, the House will note the special Motion on the Order Paper relating to the last of the four Bills. This is necessary because that Bill, although a necessary part of the consolidation scheme, is not strictly a consolidation Bill. It can thus be dealt with, along with the other Bills, by the Joint Committee more conveniently. The rules of the House require that it be referred specifically. The other Bills, of course, go in the usual way and automatically to the Joint Committee without any special Motion. That is the plan we followed last November in the almost equally complicated companies' consolidation which I introduced.

As I remember, my noble friend Lord Molson reminded me in a Starred Question last February that the housing legislation has remained unconsolidated for too long. It is a body of law which is of immediate practical importance to a large number of our fellow subjects. The Bills now before the House will make a major contribution to its clarity and accessibility. I therefore commend them to your Lordships. My Lords, I beg to move that the first of the four Bills be now read a second time.

Moved, that the Bill be now read a second time.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, the House will be grateful to the noble and learned Lord for undertaking the huge task of explaining this mammoth piece of consolidation. One wonders what will be the dimensions of the new Housing Bill. I suspect that it will add considerably to the size of the statute book. Indeed, we can see a great bundle in the Lord Chancellor's hand. One also wonders what is being done about the hoped for process of reducing the size of the statute book when we are enlarging it so signally on this occasion.

The Law Commission is undoubtedly to be congratulated on its achievement in completing this process. The next task I suppose will be to reform the law of housing and of landlord and tenant. Is not that also overdue? When can we look forward to some progress in that direction?

Lord Simon of Glaisdale

My Lords, this consolidation and the events which have led to it raise some important issues and questions. Therefore, I should like to remind your Lordships of its immediate background, which concerns what happened as regards the Bill mentioned by my noble and learned friend the Lord Chancellor; namely, the Housing and Building Control Act of last Session.

Part I of that Bill amended, by reference, the Housing Act 1980 in dealing with the right to buy council houses. It was never gainsaid that that amendment by reference was utterly incomprehensible. It was entirely incomprehensible to the persons who would be principally concerned; namely, council tenants and, only with great difficulty and with the use of scissors and paste would it be understandable to the local authorities who had to administer it. It led to very great indignation, not least because it was the second Session in which the same department had put forward a Bill a major part of which was incomprehensible.

When protests were made, not least by the noble Baroness, Lady Birk, and the noble Lord, Lord Molson, the most that could be offered by the Minister in charge of the Bill was that there should be a, so to speak, unofficial consolidation of the 1980 and 1984 Acts by the republication by the Statutory Publications Office of the 1980 Act, as amended by the 1984 Act. It was said that that could only be done in four months by which time, of course, it would be far too late.

As regards the consolidation which was pressed, the important consolidation had been in train for a long time and it has now come to fruition. However, no term could be put on its completion. Such was the indignation that an amendment was put down that Part I of the 1984 Act should not come into force until there had been consolidation. There was then considerable alarm and the heavy artillery in the shape of my noble and learned friend the Lord Chancellor was called up. By the time my noble and learned friend made his powerful speech there were two significant changes. In the first place, the four months could now be reduced to two, by which time it would be useful. In the second place, my noble and learned friend hoped, without giving an undertaking, that the consolidation could be completed within a year, which would bring it to this spring. The assurance of publication by the Statutory Publications Office was honoured entirely and to the minute. The consolidation is slightly later than my noble and learned friend hoped, but now we have seen its dimensions it would be most churlish to complain.

Therefore, may I make three points. First, I congratulate my noble and learned friend, the Law Commission and their draftsmen on a superlative piece of consolidation. Secondly, I draw your Lordships' attention to the fact that a strong-minded Minister does not immediately accept a negative or dilatory plea from a Government department. When my noble and learned friend came to intervene there was a substantial improvement.

The third point is a matter of legislative technique: the publication prior to consolidation of a Bill in its amended form by the Statutory Publications Office. That is alternative to another technique which I do not think would have been suitable here; namely, the well-known Keeling Schedule whereby the original Bill is published as a schedule to the amending Bill with typographical distinctions between the old matter, the new matter and the excluded matter. As I say, I do not think that that would have been suitable in this case because the dimensions were too great. The alternative of the publication in an amended form by the Statutory Publications Office, your Lordships may think, is a valuable addition to our legislative techniques.

I have only one other thing to say, since my noble and learned friend has dealt with all these Bills together. The last Bill, the consequential provisions Bill, is not a consolidation Bill. It contains some provisions, for example on page 14, which strike me as potentially controversial although they embody existing law. I merely wanted to be assured, as your Lordships will wish to be, by my noble and learned friend on the Woolsack that the fact that this is not a consolidation Bill will not throw the whole subject open to argument on its merits, but that Parliament will exercise the same restraint as it does on Law Commission amendments such as we have here, and not discuss the substance of the measure. I should be most grateful if my noble and learned friend could reassure your Lordships on that.

3.24 p.m.

Lord Renton

My Lords, as one who has persistently pressed for more consolidation, especially on this branch of the law, I hope that I may briefly endorse what has been said by the noble and learned Lord, Lord Simon of Glaisdale. This particular piece of consolidation has been a most formidable task. The measure of it can be seen by looking at the 52 pages of derivations which we find at the end of the main, newly consolidated Housing Bill, which is in two volumes.

I am sure that it was right, and useful guidance for the future, to try to split this consolidation effort into several parts. If it had been all done in one part these two volumes would certainly have had to be three volumes and the whole thing would have been completely unmanageable. Therefore, as a guide to future consolidation, I suggest that that is a useful precedent.

May I just mention in passing, especially as it has been suggested that the law should now be reformed, is it not rather a strange reflection upon the parliamentary habits of the great British Parliament that a matter which touches the ordinary citizen in his daily life and in his home life should have to be expressed by Parliament in such enormous detail as we find in these volumes, which even then are, as has been pointed out, not the whole of the story.

I hope that in further legislation on this subject, and in any attempt to reform it, that will be borne in mind. To the extent that we can enact matters in clear general principles and try to avoid much of this detail, we shall be doing a great service to our fellow subjects.

Lord Molson

My Lords, it would indeed be ungracious on my part if I did not say a few words of thanks and congratulations to my noble and learned friend the Lord Chancellor for what he has achieved in this matter. The length, complexity and difficulty of this matter have been set out by the noble and learned Lord. Lord Simon of Glaisdale, with that mastery of detail for which he is so well known. With him and my noble friend beside me, Lord Selkirk, we protested vigorously during the debates on the 1984 Bill that it was to a large extent only an amendment of the 1980 Act, and that really it was impossible for anyone to understand what the outcome was going to be without carefully collating those two measures. In addition to that of course there was the existing corpus of housing law.

In answer to our representations, my noble and learned friend the Lord Chancellor undertook, as has already been mentioned by the noble and learned Lord, to do his best to bring a consolidating Bill on to the Floor of this House within 12 months. I do not think that anyone, possibly not he, realised what a tremendous task this was going to be. Therefore, I should like to express I am sure the appreciation of all of us at the way in which my noble and learned friend has managed to achieve this within one year, which is what he did not promise but undertook to endeavour to do.

We are therefore now confronted with four separate Bills— 149, 150, 151 and 160. That is a measure of the magnitude of the task. The repeals alone cover seven pages in one of the schedules. I would only say to the noble and learned Lord, Lord Elwyn-Jones, that although this does nothing to reduce the volume of the statute book it at any rate goes a long way to simplifying it for those who wish to look up the law upon the subject.

The matter has been carefully covered from the technical point of view both by my noble and learned friend the Lord Chancellor and also by the noble and learned Lord, Lord Simon of Glaisdale, but I should like to go a little further and mention another substantial achievement, and one which my noble friend Lord Renton would be too modest to mention himself. This consolidation marks a great step forward because for almost the first time we have a statute which is lucid and intelligible in its drafting.

I often used to think that parliamentary draftsmen gloried in their own obscurity to demonstrate their ingenuity. This was criticised by my noble friend Lord Renton in a remarkable report: remarkable because of its painstaking and perspicacious analysis of the whole of this immensely complicated and difficult problem. I think that this legislation marks a turning point in the direction of the long due acceptance of many of the recommendations made by my noble friend in the Renton report. The old style consisted of long subsections without a single full stop extending perhaps to 20 lines. The main verb might be in the first line and the rest of the main sentence in the 21st line. The intervening lines would deal with exceptions, reservations and sometimes with irrelevancies.

The new style is exemplified in these Bills. In the main Bill there are 18 parts—each with a logical and sensible title which enables one to know what it is about—and within them 624 clauses clearly stating the subject. Finally, and most important of all, the subsections seldom exceed seven lines in length, and all exceptions and reservations are set out separately and clearly. I think my noble friend would say that that is entirely in line with the constructive suggestions that he made in his report which has been too long neglected.

Credit for an important step in the clarification and rationalisation of the law, making it in the words of the 39 articles "understanded of the people", attaches first to my noble and learned friend the Lord Chancellor, who promised this consolidation and, against great difficulties in a tight timetable, has seen it through; to my noble friend Lord Renton whose memorable report has at last been remembered; and thirdly to Parliamentary Counsel and their assistant who have departed from the antiquated tradition of ponderous complication in favour of a simpler, orderly and logical style of draftsmanship. This is greatly to the credit of all those concerned.

3.33 p.m.

The Lord Chancellor

My Lords, I should like to thank most sincerely all those noble Lords who have taken part in this debate and to reply to some of their excellent points. It is true that the statute volume for 1985 will be greatly enlarged by this legislation, if it passes its remaining stages, but the number of statutes on the statute book will be comparably reduced by virtue of this consolidation. That is a step forward because, instead of having to look in many places, the practitioner and the subject will be able to look in one place alone, namely, the 1985 statutes. The main process of the reduction of the number of statutes on the statute book is the work of the Statute Law Revision Committee whose work was begun before my first term of office, from the term of Lord Gardiner onwards. The number of statutes on the statute book has, contrary to general belief, diminished rather than increased. I sympathise with the other remarks made by the noble and learned Lord, Lord Elwyn-Jones. I should greatly like to see a simplification of the law, indeed, a reform of it, but we pass laws relating to landlord and tenant and housing almost every year. The number of laws which are now being consolidated indicates that.

I was grateful to my noble and learned friend Lord Simon of Glaisdale and I accept on behalf of the draftsmen and on behalf of the Law Commission his congratulations on this stupendous piece of work. He also was good enough to add words in praise of myself. I can only say that, like Jeeves, I endeavour to give satisfaction, but I cannot claim that I have done more than give it such backing as I was asked to do with such enthusiasm as I am capable of giving. I fully share my noble and learned friend's belief in Statutes in Force as a tool for the practitioner and the user of statutes and I have always backed it from the very first. The whole sequence is now complete but the price, I am sorry to say, is enormous. On the other hand, those who are interested in particular parts of the law can buy separate parts at something less than that enormous price. I certainly hope with my noble and learned friend that the minor consequential provisions in the last of the four Bills will not be made the subject of debate unless there are controversial animadversions on some of those by the Joint Select Committee which will be considering them in detail.

I was also grateful for what was said by my noble friend Lord Renton whose work in this field was generously acknowledged by my noble friend Lord Molson, and I should like to be associated with what Lord Molson said. As regards the extraordinary length of English legislation, we have to recognise that our laws are, on the whole, more verbose than those of comparable democracies on the Continent. But this is primarily the fault not of our parliamentary draftsmen, that dedicated body of men, but of our technical rules of legal construction, which are often the subject of debate in legal books but which we have never yet quite been able to get round.

Our doctrine is that Parliament is supreme. Therefore, the draftsman has to think of every possible detail which can be the subject of debate in the courts, otherwise it is said that the judges are making laws. This is the difficulty which no Lord Chancellor, no judges and no draftsmen have been able to get round. But we are moving slowly but firmly, and I hope that with the general consent of the profession and Parliament, towards a more purposive construction of the statutes, which in the end should lead towards a more concise style of draftsmanship. I am also grateful to my noble friend Lord Molson for his constructive contribution both on this and on a previous occasion, and I am grateful for all he said.

Lord Harmar-Nicholls

My Lords, I hope that the extravagant plaudits directed at the Housing Bill, as distinct from the "Renton Amendment Bill" which comes later, will be justified. They were extravagant. I doubt whether they will live up to the words used. I have never known extra words to simplify anything, and this consolidation means extra words.

The Lord Chancellor

My Lords, I am much obliged to my noble friend.

On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.