§ 3.4 p.m.
§ Lord Campbell of Alloway rose to call attention to codes of practice as affecting the incidence of legislation; and to move for Papers.
§ The noble Lord said: My Lords, this Motion calls attention to a situation whereby as a matter of practice, maybe on grounds of administrative convenience, Royal Assent is given to a Bill authorising the Executive to introduce a code of practice before the proposed provisions of that code of practice have been tabled; and so consideration may not be given in either House to which provisions should be embodied in which of the various types of code, the disparate incidence of which has been settled by the judiciary and settled by reference to the construction of the trigger clauses which introduce 1076 such codes. In that, the legislative role of Parliament is slighted, and indeed spent, by the time the code is laid for approval or for activation by statutory instrument.
§ The revisory role of your Lordships' House is hobbled and inhibited. The judiciary, fully conscious that administrative convenience and justice are often not on speaking terms, cannot usurp the role of Parliament even if that role has been pre-empted. A constitutional, a procedural and a legal problem for the certitude of law is infected with incipient erosion, because it is the terms of the trigger clause and not the provisions of the code which are determinative of legal effect. So any assumption that the codes are enforceable, save in the rare, exceptional cases that I shall deal with—save in those cases where the form of the trigger clause so provides—is wholly illusory. Apparent rights either lack legal significance or are subject to unchallengeable discretion.
§ That state of affairs is a matter of current concern to the Statute Law Society, to my noble friend Lord Renton, its president, and to another distinguished member of that society, that éminence grise of all matters procedural in your Lordships' House, the noble Lord, Lord Henderson of Brompton, at whose suggestion this Motion was tabled. What is to be done about it? Ought there to be some revision of procedures? Ought there to be some form of scrutiny at the drafting stage of Bills; or ought there to be perhaps a committee set up under the authority of the Lord Chancellor of the day which could look at the proposed revisions and the form of the trigger clause proposed and perhaps make recommendations to both Houses of Parliament?
§ It is upon such questions as those that the noble and learned Lord, Lord Elwyn-Jones, raised the curtain. That was in the debate on the code under the Police and Criminal Evidence Act. The noble and learned Lord was of course primarily directing his mind to Section 67(11) of the Act, a common form and type of trigger clause in current usage. But his observations, which were of great importance and authority, were also of general application. The noble and learned Lord, as one would expect, went straight to the heart of the problem. He contrasted the authority of codes with that of statutes. He questioned the efficacy of remedies available to individual citizens, and he reminded us that reliance upon these codes was representative of a modern and unhealthy trend towards rules of indeterminate status.
There are, so far as I can judge—there are no books on this—five main types of trigger clause with disparate effect, two of which give rise to particular concern. The first which gives rise to concern is the "shall have regard to" type of clause directed to local authorities in the realms of public administrative law. An example of this is the Child Care Act 1980 where the authorities must give consideration to the claims of the wider family, the natural parents, of a child in care. That has been judicially interpreted by no less an authority than the Appellate Committee of your Lordships' House, and therefore, inevitably, is right, as meaning that such persons have no right whatever to be heard and that
the code lacks any legal significance".
That is the noble and learned Lord, Lord Scarman's, opinion.
§ Similar considerations arise with the code under the Housing (Homeless Persons) Act; and a similar conclusion was reached by the Court of Appeal. That case is at present under consideration by the Appellate Committee of your Lordships' House. Similar considerations arise in the context of the code that is to be issued by the Mental Health Act Commission. Why do I say "similar"? Because if you compare the trigger clauses, Section 12 of the Act of 1980 and Section 18 of the 1983 Mental Health Act, they marry in the conclusion that the codes lack legal significance. We shall have the great advantage of hearing my noble friend Lord Colville of Culross as to the situation of the code under the Mental Health Act. I shall not seek to pre-empt anything that he might say.
§ But can it be right, on any law, that measures designed for the protection of the disadvantaged should lack legal significance? Can it be right that the only man in the field of enforcement shall be the longstop of judicial review on grounds of perversity? Ought we not, perhaps, even by analogy with the immigration regime, to enlarge the scope of judicial review? Section 3 of the Immigration Act 1971 does give the rules legal effect. By analogy, some form of new trigger clause might be devised to deal with the situation.
The second type that gives rise to concern is the type with which the noble and learned Lord was dealing—the common form in current usage. That type is admissible in civil and criminal proceedings. Indeed, if it appears to the court or tribunal to be relevant to any question, it is provided that it shall be taken into account in determining that question. I say "common form". Some examples of codes are the five codes in employment law under the Act of 1975 and the Act of 1980, others under the Sex Discrimination Act and another under the Race Relations Act. There are many of them. The judicial approach to this type of code means, in one phrase, that rights are subject to unchallengeable discretion. Although it is accepted that the codes should be regarded as an integral part of legislation, it is said judicially that they form no principles of law and only provide what are standards of good practice and behaviour. No appeal may be entered on the ground that the court or tribunal failed,
to take into account the provisions of the code".
Only in cases of perversity, where the decision flies in the face of commonly accepted standards of fairness, will the decision be quashed on judicial review.
§ True, much of that judicial approach was a result of what was said by the Vice-Chancellor in a case concerned with the code applicable to dismissal on grounds of redundancy which was introduced under paragraph 46 of the code and which, in turn, was introduced by Section 6 of the Employment Protection Act 1975. But to this type of code in common usage the reasoning is of general application.
§ There are, in contrast, two other types of code both of which give legal effect, one in civil proceedings and the other in criminal proceedings. The third type, the one in civil proceedings, may be relied upon in civil proceedings as tending to negative or establish liability. The sole example that I have been able to find is the Highway Code, introduced by the trigger of Section 35(5) of the Act of 1972. This enabled the 1078 noble and learned Lord, Lord Denning, to elevate that code into principles of law of general application in the field of contributory negligence in road accident cases. But it is the rare case, the exceptional case, and, so far as I know, the only example.
§ In criminal law, which is the fourth type, there is the code where breach constitutes an offence. It is in a sense full-blooded subordinate legislation. It gives rise to no cause for concern. Examples are the Health and Safety at Work Act 1974, clothing and equipment, or the Radioactive Substances Act 1948, transport, and handling of these substances. A breach of those codes is a criminal offence.
§ The fifth type is the type of code where there is no legal effect at all, such as that proposed, for example, under Clause 21(2) of the Animals (Scientific Procedures) Bill, or such as has been implemented for the convenience of the disabled under the Transport Act 1985. Within this type one has various sub-categories of consumer codes with which there is not time for me to deal. There are also codes which have no statutory derivation. Inevitably certain questions arise. There is not the time in introducing this debate to deal with them.
§ In conclusion I would only wish to say that the problems under discussion in this debate arose in a most acute form at the Committee stage in your Lordships' House during the Animals (Scientific Procedures) Bill and induced a veritable miasma of confusion. Hansard shows that the hope was expressed that today's debate in your Lordships' House might serve as some measure of clarification as the Report stage of that Bill is tomorrow. Such is the spirit in which I beg to move. My Lords, I beg to move for Papers.
§ 3.22 p.m.
§ Lord Denning
My Lords, I should like to thank my noble friend Lord Campbell of Alloway for introducing this subject, which is important constitutionally and legislatively. I gather that this was at the suggestion of the noble Lord, Lord Henderson of Brompton, whom we all regard so highly in this field. However, I should just like to say a word on my experience in dealing with codes of practice. The first one which comes to mind is the first in date, the Highway Code. That came into being in 1930 by the first Road Traffic Act. Then it was proclaimed and left to the Secretary of State to be able to issue directions for the guidance of road users. He did it by virtue of the Highway Code which all your Lordships will have seen.
When I was sitting trying these cases I had the Highway Code on the desk before me and was always looking to see whether the man ought to have held out his hand as a signal or not. This question always arose, for instance, whether it was a case of a man driving without due care and attention, or whether it was one of negligence in driving. The statute could not deal with all the details which would arise in the ordinary case of road users and therefore Parliament—and I think rightly—issued a code of practice, a Highway Code, for the guidance of individuals using the road. That was not a statute which was imperative and for which one could be punished for disobeying, but was 1079 for guidance. It could be taken into account by a magistrate or judge trying a civil or criminal case. It could be taken into account and is therefore not without legal significance. It is an important element in deciding the case. That was the function of the code and, so far as my experience is concerned, I should have thought that worked admirably.
Similarly with the industrial relations code, going back to 1971. Other parts of that Act were repealed, but this part, the industrial relations code, was excellent. The statute could not provide details as to how management was to deal with men, but it authorised the Secretary of State to issue a code for the guidance of management and men. For instance, if a man complained of wrongful dismissal one could look at the code to see whether the employer ought to have had a word with him beforehand or not. The industrial relations code governed the details of the matter which could not be dealt with in the statute. It was for guidance, and was therefore of relevance. It was of legal significance, but on the other hand it was not a statute itself.
That is my experience as a judge of these codes of practice. The present and latest one is in the Police and Criminal Evidence Act, which we discussed a little while ago. Again, the right was given to a constable to search people whom he thought he ought to search. Again, the statute could not go into details about that. Guidance was given by a code of practice, which was issued after much consultation all round.
The important thing is that these codes give guidance in simple, intelligible language—which they ought to do because the layman has to read them—not in the somewhat stilted or obscure language of a statute. From my practical experience, I would say that so far as that type of code is concerned, this is a good legislative device for helping the courts to come to a just decision in the cases before them.
My noble friend Lord Campbell of Alloway has referred to the other point. There are the series of statutes which give not only guidance but say that the body of magistrates or the council—whatever body it may be—shall have regard to this, that or the other. My noble friend suggests that those have no legal significance at all. However, I would say—and I can cite dozens of cases on this—that if an administrative body of that kind does not have regard to the matters to which by statute or by code it ought to have regard, then that is a ground for interfering with that body. I should have thought that that was not without legal significance. It is of legal significance—they shall have regard to that.
I need not go further because the whole question is as to whether or not this is a proper legislative device to deal with the practical problem when one has to deal with masses of detail. One cannot deal with them in a statute. One cannot even deal with them in a regulation.
Finally—I know that my noble friend Lord Campbell of Alloway knows all about this—let us take our planning legislation. A planning committee has to decide whether or not there is a material change of use. One will not find any help in the statute. The planning department has issued dozens of circulars to give guidance; and it gives guidance to the planning 1080 committees. Those circulars have no legal significance whatsoever but they are most useful to those in the planning committees who have to deal with them. In other words, there is a whole field in which guidance can be properly given, I suggest, by way of codes of practice and the like. Therefore, although I warmly welcome this discussion, for myself I think that the legislature is not doing at all badly at the moment.
§ 3.29 p.m.
§ Lord Airedale
My Lords, following as I do the noble and learned Lord, Lord Denning, I am reminded that after the Lord Mayor's Show follows the dustcart. But I can at least safely join with the noble and learned Lord in congratulating the noble Lords, Lord Campbell and Lord Henderson, on providing for us this interesting topic for debate this afternoon.
My particular interest in this subject at this time is that it was I who ventured, during the Committee stage of the Animals (Scientific Procedures) Bill shortly before the Christmas Recess, to put forward an amendment to incorporate verbatim into that Bill the "trigger clause", as it is called, of the Police and Criminal Evidence Act. Your Lordships will remember that that is the clause which makes the codes of practice, wherever relevant, admissible as evidence in court in either civil or criminal proceedings. That seemed a fair and reasonable position to take. It can operate either in favour or against either party to a dispute. On the one hand, it can be said to the person accused, "You had the codes of practice before you. You chose to disregard them. You took that risk and you must face the consequences". On the other hand, the accused person may be able to say, "I faithfully observed the codes of practice which I was required to observe. What more could you expect me to do in the circumstances?"
I received a good deal of sympathy from the Minister, the noble Lord, Lord Glenarthur, for the amendment which I was seeking to introduce. However, the noble Lord has since written me a very detailed letter in which he sets out the reasons why he thinks that a trigger clause of this kind is not appropriate to the animals Bill. Having explained his reasons—and I shall not trouble the House with those reasons—we come to the sentence which says:It would therefore be inappropriate to insert in the Bill a reference of the sort proposed in your amendment. In addition it is in any case unnecessary since there is nothing in the Bill which bars the admission of codes of practice [as] evidence in civil or criminal proceedings, and if they are relevant to an issue arising during proceedings they could be taken in evidence.If that is a statement that it is a general principle that codes of practice, where relevant, can be used in evidence in court, then one wonders why we insert a trigger clause in a particular statute at all. Is one not therefore going to mislead people who will say, "Well, there is no trigger clause in the animals Bill and therefore the codes of practice under that Bill are probably not admissible in evidence because if they were to be admissible Parliament would have inserted a trigger clause"? Therefore, I believe that we are in rather a muddle about this point. Let us either have a general principle which is widely accepted and understood or else, if we are to have trigger clauses, let them be put into every Bill in which they ought to be put.
1081 Let us suppose that the code of practice comes before the court. It is rather questionable as to whether or not it will be of much assistance to the court. At this point I am indebted to Messrs. Baldwin and Houghton of Brunel University for drawing my attention to part of the judgment of Mr. Justice Streatfeild in a case reported in The Times Law Reports of 1949. The case was called Patchett v. Leatham and it concerned various Home Office circulars. In the course of his judgment, Mr. Justice Streatfeild said:Whereas ordinary legislation, by passing through both Houses of Parliament or, at least, lying on the table of both Houses, is thus twice blessed, this type of so-called legislation is at least four times cursed. First, it has seen neither House of Parliament; secondly, it is unpublished and is inaccessible even to those whose valuable rights of property may be affected; thirdly, it is a jumble of provisions, legislative, administrative or directive in character, and sometimes difficult to disentangle one from the other; and, fourthly, it is expressed not in the precise language of an Act of Parliament or an Order in Council but in the more colloquial language of correspondence, which is not always susceptible of the ordinary canons of construction".That seems to be a rather scathing indictment of some codes of practice.
It is perhaps not surprising that in those circumstances the courts show a disinclination to interfere in these cases short of finding a breach of natural justice or something as grave as that, in the same way as the courts are disinclined to interfere in cases of subordinate legislation where a Minister is given discretion. In that type of case the court will never substitute its own opinion for the opinion of the Minister, but will only interfere if it considers that the Minister has acted not far short of perversity—to borrow a word from the speech of the noble Lord, Lord Campbell.
We are beset by codes of practice on every side. There are procedural rules, like the prison rules; there are instructions to officials as to how they should perform their tasks, such as departmental circulars; there are voluntary codes of self-regulation exercised by financial institutions, professional bodies and sporting bodies, and some of them have the most swingeing powers. For example, a dentist or a jockey may have his very livelihood taken away and will have to submit to the particular disciplinary body which governs the affairs with which he is concerned. There are also the rules of practice, such as the extra-statutory rules applied, for instance, by the Inland Revenue in arriving at their decisions. There are many other instances of codes of practice.
If codes of practice generally can be said to be working more or less satisfactorily, in my view it is only because they rely to a large extent upon goodwill. Without goodwill any code of practice is liable to be very exposed, naked and defenceless. For instance, a departmental code of practice about picketing is not likely to survive unscathed a situation like the miners' strike of 1984.
I suppose that any good speech should arrive at some discernible conclusion. Judged by that criterion, I fear that I have failed this afternoon. I think that all that I have managed to do is to contribute one or two random thoughts to what is a very interesting topic.
§ 3.40 p.m.
Viscount Colville of Culross
My Lords, I too am grateful to my noble friend Lord Campbell of Alloway for giving us an opportunity to discuss this question. As he accurately forecast, I should like to confine myself to one code of practice which is required to be prepared under Section 118 of what is now the Mental Health Act 1983. Let me just tell you Lordships what has to be done. The Secretary of State is told to,prepare, and from time to time revise, a code of practicewhich, in summary, is to guide all the relevant professional people,in relation to the admission of patients",suffering from mental disorder,to hospitals and mental nursing homes",and for their treatment while they are there.
Before the code is published there is a requirement to consult widely, and there is then a procedure which in fact was introduced in another place (which was the second House when this legislation was going through Parliament) on Report stage, right at the end of the parliamentary process, which requires copies of the code and any revision to be laid before Parliament under the equivalent of the negative resolution procedure, which is then spelt out because it does not have the benefit of the statutory provision. After that has been done, and provided that Parliament does not want it altered, the Secretary of State publishes the code as it is for the time being in force.
The Secretary of State, by statutory instrument, delegated the preparation of the draft to the Mental Health Act Commission; and for two years we have been struggling with this and I am sorry to say that this is what we have produced. It is written on a word processor, which makes it a little larger than might otherwise be the case, but it is 209 pages long and there are 25 pages of index by way of mitigation. It has been a formidable task, and I therefore come to this House fresh from the positive exercise of having to prepare a code of practice in response to the requirement of Parliament and the Secretary of State. Indeed, I wrote some of it myself. I do not know what will happen to that bit.
There are two things I should like to say about this. I take the point made by the noble Lord, Lord Airedale, that we ought to try to reach a conclusion. The first is the positive side of it. There was a tremendous amount of interest in the mental health legislation when it was going through both Houses in 1981–82, and there were a large number of matters suggested by noble Lords and right honourable and honourable Members of another place for inclusion in the legislation. We all know the pressures to put things in the Act. A great deal of this was resisted, and the legislation itself was kept much more simple than might otherwise have been the case by the idea of incorporating a great number of these matters in a code of practice which would be prepared.
Then of course there is the point to which the noble Lord, Lord Airedale, referred in the judgment of Mr. Justice Streatfeild, about the way in which this code should be expressed. I have never found that the statutory language that we use in this country is particularly easy to interpret, and it is particularly 1083 difficult to interpret if you have to use strict rules of interpretation. It is certainly not a matter that professionals, say, in the mental health field would wish to do battle with. Therefore, I suggest to the House that there is a great deal to be said for putting this sort of material into easily understood, everyday language, and particularly of course if you can change it from time to time and bring it up to date. Therefore, from that point of view the code of practice also is a great advantage. I grant that it may turn out to be too long, but at least it is tolerably easy to understand.
With those advantages one is then drawn up to a halt by the provisions in this section about the parliamentary approval of the code. What on earth is this supposed to achieve? It is not a statutory instrument, but it is, in some shape or form, blessed by Parliament. I put this to a test for myself. I attempted to write a draft introduction to this code of practice to suggest to those who might in due course come to use it what ought to be done with the thing. The noble Lord, Lord Renton, will look in vain in the beginning of it for any such insertion, because it was immediately taken out by the department; and very wisely so too.
However, it points to the issue—and particularly to those who are actually told to prepare a code of practice of this sort—for what purpose is it to be prepared, who is to use it, and how? The real message that I should like to bring to this short debate is that if Parliament is going to do this sort of thing—and I have suggested two good reasons why it should—then it must at the same time apply its mind to saying, in terms, what is to be the effect of the code when it is prepared.
I can envisage all sorts of problems arising. I do not wish to suggest what the courts are going to do because that is a matter that no doubt will have to be adjudicated upon in due course, but I can see two areas where this code might well be used, or be sought to be used. One is in individual actions for some sort of mistreatment, or negligence, or something of that sort by any one of the numerous sorts of professionals who are engaged in looking after mentally disordered persons.
Happily, these cases do not very often come before the courts, but I hope that we do not follow the American pattern and make this a great source of litigation. It could be that people could pick upon various passages in the code and suggest that if they had not been followed this is something which might give rise to a claim in negligence or some other fault. That would be, I fancy, the opposite of what Parliament had in mind when it required the creation of this code.
The other thing for which it could be used—and again the noble Lord, Lord Airedale, referred to this type of proceeding—is the internal professional disciplinary procedures whereby any one of the multifarious disciplines involved in the mental health field might find themselves up against their own disciplinary procedures for failure to take account of, or to act upon, the precepts of the code of practice.
In those circumstances—and I would think in those alone, at any rate in this context—one might get into the realm of judicial review, because it could well be 1084 that a court would look at the proceedings of the disciplinary body and say that they perhaps ought not to have taken into account the code of practice as being evidence of what is good practice in that particular professional field. All those matters are at large. Therefore, I think that there are good reasons to say that even if it is a good plan to have codes of practice for various complicated things put into statutes, Parliament must say what is to be done with them.
§ 3.48 p.m.
§ Lord Rochester
My Lords, I hope that the House will bear with me if I deal only with the one aspect of the question that the noble Lord, Lord Campbell of Alloway, has raised this afternoon on which I feel at least qualified to speak; namely, its application to industrial relations. In that field I should like to take this opportunity briefly to illustrate how codes of practice might, in my view, prove to be useful as preludes to possible legislation subsequently.
When, nearly five years ago, the noble Lord, Lord Renton, introduced a debate in your Lordships' House on the Government's consultative document on trade union immunities I said that the strongest case for altering the law in that respect seemed to me to reside in the removal of immunities from industrial action taken in breach of collective agreements. However, it was plain from the Green Paper that that question was inextricably bound up with the further problem of whether it was feasible to make collective agreements legally enforceable contracts. I shared the view expressed in the consultative document that a great deal of education would be needed before negotiators were sufficiently convinced of the desirability of such arrangements for them to become workable.
I went on to ask whether, as a first step, the Government would consider in their consultation at that time the possibility of introducing a code of practice additional to those on picketing and on the closed shop which followed the Employment Act 1980. The code that I had in mind was to deal with negotiating procedures.
Among other things, it might draw attention to the clear distinction which is already made in western Europe between disputes of right involving the terms or interpretation of agreements already entered into and disputes of interest. In disputes of interest there is for example in western Germany an obligation not to resort to industrial action before referring the issue to a court of law or to arbitration. Almost invariably the parties to the dispute abide by that independent decision. Disputes of interest, on the other hand, arise out of bargaining situations; and, typically, when an existing agreement affecting pay expires and a new one is negotiated, both parties retain their freedom until a new agreement is reached. In that interval, if they cannot agree on the terms of a new agreement then a dispute of interest arises and both parties are free to use industrial action if they wish; that is, the union side may call a strike and the employers could operate a lock-out.
However, even in disputes of interest although industrial action is considered entirely legitimate, great efforts are always made to avoid it. The code of practice that I had in mind was to be based on the proposition that negotiating procedures should be 1085 introduced in which both management and employees had sufficient confidence to see that they were observed. It was to have as its aim that in all disputes concerning the terms of interpretation of agreements already entered into, whether they affected individuals or groups, there should in the last resort be recourse to arbitration which both management and employees would abide by.
The provisions of such a code, like those others stemming from the 1980 Act, could then be made admissible in evidence and taken into account in proceedings before a court, an industrial tribunal or the Central Arbitration Committee. In that way I felt that we might gradually and with a sufficient degree of consent reach a position where the organisers of industrial action taken in breach of collective agreement would no longer have legal immunity and could be sued for damages.
In replying to that debate, the noble Earl, Lord Gowrie, said that he found that an interesting proposal, and he said that serious consideration would be given to it. Since then however I have heard no more from the Government on the matter, despite one or two reminders. I appreciate that the noble and learned Lord, Lord Cameron of Lochbroom, when he replies to this debate may not be in a position without notice to give a considered response. But I should like at least an assurance from him that the Government still have a proposal of this kind in mind as a means of extending the use of codes of practice prior to possible legislation. I suggest that it has special relevance to instances of industrial action that have sometimes taken place in essential services.
More generally in political terms the present position in the industrial relations field appears to me to be very fluid. There is talk of positive rights for trade union members replacing immunities from legal action. We have examples of no-strike agreements being entered into with provision for pendulum arbitration when negotiations result in a failure to agree. There are also calls for more legislation to limit still further the power of trade unions to inflict damage on third parties, specifically in essential services.
For my part, I suggest that the Government would be wise to think carefully before introducing any immediate additional legislative measures concerning the conduct of industrial disputes. On the other hand, it seems to me that two great merits of seeking to extend the use of codes of practice in the industrial relations field are as follows. First, that before they are introduced there must of necessity be consultation with interested parties and recognition of the need (mentioned already by my noble friend Lord Airedale) to obtain the widest possible measure of agreement as to the terms of the particular code that is contemplated. Secondly, codes of practice in this field can operate over a period which affords time for their provisions to be tested in such a way as to establish whether in practice they are sufficiently acceptable to the employers on the one hand and to the general body of employees on the other to warrant their eventual translation into legislation.
In conclusion, I simply welcome the imaginative initiative that the noble Lord, Lord Campbell of 1086 Alloway, has taken in raising this afternoon a question which has such wide-ranging applications.
§ 3.58 p.m.
§ Lord Renton
My Lords, although I share his interest and concern with regard to trade union law, I hope that the noble Lord, Lord Rochester, will forgive me if I am not so rash as to express an instant opinion about his suggestion that there should be a code of practice for negotiations between employers and the employed. That is a very big question. I want also to refer to more general matters and give some other examples.
I, too, should like to congratulate my noble friend Lord Campbell of Alloway not only upon his initiative but on the helpful way in which he introduced this debate. This question of codes of practice is of undoubted and growing importance. It is a practice which has increased enormously in the last ten years. It is already clear from the speeches that we have heard from some noble Lords that the time has come for Parliament and the Government to consider where the practice is leading us: how legislation is affected, how it affects legislation and what should be done to achieve some consistency and order of principle and practice when codes of practice are being prepared in future. Indeed, I venture to suggest that the time has come for us to have an approved code of practice for preparing codes of practice.
I hope that it may help if I try to put this matter into a bit of historical perspective—because I think we need to do so—in order to see where we are going, and so fast. Perhaps I may start by mentioning that I have several times been asked by noble friends on both sides of the House why this matter was not considered by the Committee on the Preparation of Legislation of which I had the honour to be chairman. The two-fold answer is that, first, it was not in our terms of reference and, secondly, it did not need to be; because in 1973 when we started our deliberations there were only two well-known codes of practice, the Judges' Rules and the Highway Code. There were, however, half a dozen minor and obscure codes of practice under six different statutes between 1967 and 1971. But, with the help of the excellent staff in the Library who, in turn were helped by the Lexis system of retrieval from computer, I found that since 1973 the habit has grown so much that there are now 25 statutes in force under which no fewer than 48 codes of practice may be made.
Of course, all of them have not yet been issued, but all these under the more recent legislation of the last 10 years are more important than those earlier minor ones that I mentioned. They are more important because they are of wide application to the citizens of this country and more far-reaching in their effects. Most of these codes of practice—but I am sorry to say not all—made under statute require parliamentary approval. That is obtained, as your Lordships well know, by a Minister laying the code in draft, supported by a statutory instrument which names the code, refers to it and prescribes a date when it shall come into force.
May I say in passing that, unfortunately, it is difficult to get hold of these codes of practice. They are not readily available in the Printed Paper Office, but 1087 they can be obtained after some delay. Alas, they are not all available in your Lordships' Library. But may I say that, like the noble and learned Lord, Lord Denning, and others who have spoken, I am broadly in favour of codes of practice so long as we get them right and, above all, so long as Parliament is given an opportunity to approve or reject them. I think these codes of practice, if they are properly done, are far more satisfactory than some of the departmental circulars that we have to put up with. If I may give a recent example, under the Transport Act 1985 the Department of Transport is issuing a circular to tell local authorities how to carry out their functions under the Act. Parliament did not require to be consulted about those circulars but the contents of them may be very influential. The department puts forward its own interpretation of the Act, and that interpretation might not always be acceptable to Parliament. So, as I say, codes of practice are right if they are approved by Parliament. I think that we must accept that the system has come to stay and that therefore we should make the best of it.
Clearly, we cannot expect complete uniformity of style and content so far as codes of practice are concerned because, as my noble friend Lord Colville of Culross mentioned, they necessarily have different purposes. One code of practice may have several different purposes, as he has so clearly illustrated with regard to the code of practice on which he has been working under the Mental Health Act, and I shall have something more to say about that in a moment. But I suggest that we should and could avoid some of the present confusion and the uncertainty as to the status of the terms of these codes of practice.
May I give two more examples? I have been told in a letter which came to me out of the blue from a representative of the chemical industry that they are worried because of the Health and Safety Commission's so-called approved code of practice. I do not think that it is approved by Parliament; it is approved by the Health and Safety Commission. Their codes of practice are not mandatory but they reveal a growing tendency towards a quasi-legislative status or pretension of status. This quasi-legislative status is being extended to non-statutory material, clearly non-statutory material, which goes under the heading of the "Health and Safety Commission's Guidance Notes". I am told that this is having a distorting effect in the chemical industry on its efforts at self regulation as proposed by the Robens report. Therefore, the chemical industry seeks clarification. If I may repeat an expression used with regard to the Police and Criminal Evidence Bill on the police codes, they have a three-tier system: regulations, codes of practice and guidance notes.
§ Lord Renton
My Lords, I am much obliged. So much for the chemical industry. My other main example is from the Police and Criminal Evidence Act. I agree with those who spoke at the time, that they are good in substance but I must point out to your Lordships that parts of those codes may repeat or paraphrase provisions of the Act without any 1088 attribution whatsoever; so that when you read those codes you do not know whether, in fact, they are a repetition of laws which have been passed by Parliament or are commentary, no doubt valuable and helpful commentary, but commentary by the Home Office. I think that the courts and the people appearing before them and their advisers have a right to know the true status of each of the provisions of the codes of practice.
As to the status of the codes under that Act, it has already been pointed out that in police discipline proceedings every word of those codes has full legal effect; and a policeman can have his whole career affected by something in the codes which may not be precise, statutory provision. Therefore we find that these provisions, many of which but not all of which are really penal provisions in a sense, and some of them have never been considered in detail by Parliament, could not be amended by Parliament when we approved them before Christmas and, as I say, they are additional to the statute. But in all other proceedings these codes are merely of persuasive value—as the noble and learned Lord, Lord Denning, said, helping the courts to reach decisions, but of course without binding legal effect.
My noble friend Lord Colville of Culross has set a very good example, if I may say so, because after some difficulty I did manage to get hold of his not-yet-published code of over 200 pages. I should like to congratulate him upon the industry which has gone into it, which must be something terrific. I am sure that those of us who are involved—like the noble and learned Lord, Lord Elwyn-Jones, is, with the mentally ill, and the mentally handicapped, as I am—will be grateful for the painstaking way in which it has been done. But the great thing about that code is that it specifies the sections of the Mental Health Act to which each part of it refers. That is a great advantage.
It has another advantage too, which I think is worth the Government bearing in mind always in the future preparation of codes of practice. It is expressly a consultative document. One assumes that it will not be presented to Parliament for approval until there has been a period of consultation so that Ministers can take note of the representations made with regard to it. That is a great advantage.
May I take now the Highway Code? Really, after all these years we ought to have learned how to do this better. In half a dozen lines of very small print you manage to find that it has got a statutory origin, but when you read it—and we are nearly all motorists, are we not?—you have no idea that the advice that it contains and the instructions that it gives are based upon statutory provisions or have come out of the fertile mind of a member of the staff of the Department of Transport. Possibly you will think it is right that there should be a difference, and that at any rate when there is a statutory foundation there might be a little marginal note saying that it refers to section so-and-so of such-and-such an Act. To do this would not be a great problem and it would clarify the legal position. So the first principle in drafting codes of practice must be to indicate their statutory sources and to clarify their legal effect. Other principles will no doubt emerge from your Lordships' debate, but I must now sit down.
§ 4.13 p.m.
§ Lord Mottistone
My Lords, I too should like to congratulate my noble friend Lord Campbell of Alloway on introducing this debate. I have been concerned for some time, and I was particularly interested in what my noble friend Lord Renton had to say, about the way in which the practice of having codes of practice has increased so tremendously in the past 12 years or so. That has been more and more obvious and one has become more and more concerned that somehow these codes of practice were growing like Topsy and not growing in any orderly way.
There are not only codes of practice. There are guidelines, which creep into some legislation, and I do not know how the status of a guideline compares with that of a code of practice. Then we are told about guidance notes; and so it goes on. In the same area, there was the licence for British Telecom, which, thanks to quite a lot of pressure, my noble friend Lord Cockfield managed to arrange to have presented for parliamentary consideration before it was brought into force by special machinery through using the statutory instrument which controlled it. But that had to come as a result of parliamentary pressure. It would not have happened in the normal course.
We are then left with the fact that with these codes of practice and other documents of the same sort, when you do get a chance to look at them you cannot amend them. They have the same failing, if one can put it in that way, as has the statutory instrument: you have either to take it or leave it. I remember very well the code of practice that my noble friend Lord Colville has been telling us about, when we were being asked as the Mental Health (Amendment) Bill went through Parliament whether we would agree to a code of practice. A lot of us were very concerned about that because we were not at all sure that the Department of Health's policy at that stage was really quite straightforward and that we would get the right sort of code of practice. I am very pleased indeed that my noble friend has had the privilege of putting it together instead of that being done by the department, because I think one can trust him a great deal more.
The great point about all this—I do not want to labour it, because other people have said it—is that it is untidy and that when Parliament does get a look, it does not get a chance to amend it. I believe that in some cases these kinds of things do not require amending and it is proper from the point of view of getting the business through that we should not waste our time in trying to amend them; but I should like to suggest to your Lordships that there are two things which might make this more controllable.
One is the suggestion of my noble friend Lord Campbell of Alloway that there might perhaps be a special scrutiny committee which scrutinises these things on behalf of your Lordships. I do not say that is necessarily the right answer, but I should very much like my noble and learned friend the Lord Advocate not to discount that idea but to bear it in mind as something which might be introduced in order to give Parliament a sense of satisfaction that it has a proper measure of control of these obviously necessary new types of semi-legislation, which it does not seem to have at the moment.
1090 There is another possibility which I floated in your Lordships' House from the Opposition Benches. I got very short shrift for it—it might even have come from the noble and learned Lord, Lord Elwyn-Jones, although I do not think I was grand enough for that from the Lord Chancellor of those days. It seems to me that we have now got negative orders and affirmative orders, neither of which can be amended. I should have thought that for special cases we might have—I am not by any means saying for all cases—a third category, which could be amended like a Bill. It would mean extra parliamentary time and therefore one would obviously have to have relatively few of them; but I think there is room for that. I think that some of these codes of practice could usefully fall into that category. Perhaps we might have both that new type of order/code of practice and a scrutiny committee.
Above all, I think it is unsatisfactory if we are not confident that we have proper control of what is going to affect the citizen, because that is what we are here for; and I think we must have a greater degree of control in this sort of area.
§ 4.18 p. m.
§ Lord Henderson of Brompton
My Lords, after the opening of this debate by the noble Lord, Lord Campbell of Alloway, for which we are all extremely grateful, and the impressive speeches which have followed, it seems to me that it must be clear to the noble and learned Lord the Lord Advocate by now that the whole question of the use, the status and the categories of codes of practice ought to be examined officially.
I think it was the noble Lord, Lord Airedale, who said that a good speech should end with a conclusion. I am starting my speech with a conclusion, but I hope that does not mean that it will be considered a bad speech. Having listened to the noble Lord, Lord Campbell of Alloway, and others, right down to the last speech by the noble Lord, Lord Mottistone, with his interesting suggestion that there might be a scrutiny committee, perhaps of both Houses, my conclusion is, that all the speeches really have indicated that something needs to be done and that the growth of the use of codes of practice has been Topsy-like, just as the growth of statutory instruments was Topsy-like, and that the time has now come for it to be properly looked at and properly regulated. So that is my conclusion at the outset of my speech.
Having reached that conclusion, perhaps one ought to say what one thinks would be the appropriate body to perform this task. The Government might think that a Government committee or a departmental committee might be the answer. Possibly, it might be a select committee or a joint committee of both Houses. But, for myself, I think that the Law Commissions provide the most convenient body for examining this very important development. I was going to say this legislative or semi-legislative development. I do not myself know, because I have not looked up the Law Commissions Act, whether they can act on their own motion or whether they need a reference by the Lord Chancellor. But I very much hope that the Government might see fit to present this to the Law Commissions as a possible, and indeed an urgent, subject for discussion and for a report by them.
1091 I think that the noble Lord, Lord Campbell of Alloway, has done a service by exposing some of these problems posed by the use of codes of practice, and he has given an opportunity to noble Lords who have given in great detail from their own experience—not least the noble Viscount, Lord Colville of Culross—examples of where it would be to the immense advantage of the general public at large, such as those who have to operate the Mental Health Act, and to those affected, that there should be imported some certainty into the application of these codes.
I think it would not be impertinent of the Law Commissions to undertake a study of this sort. I have in mind that they did at one time, many years ago, make proposals on the interpretation of statutes. They fully recognised the constitutional position of the judiciary, as one would expect, in these words:Under our constitutional arrangements it is the function of an independent judiciary to interpret the law and no proposals which we make can or should undermine the freedom which this function requires.But they nevertheless went on to say that a certain degree of statutory intervention was necessary or desirable and they formulated a set of draft clauses. So there is a precedent for the Commissions to undertake such a task.
As to statutory intervention, of course the interpretation Act is the most prominent example, I suppose. There was also the Rules Publication Act 1893 which was overtaken and incorporated—not before time—by the Statutory Instruments Act 1946. It seems to me that Parliament requires that an Act equivalent to the Statutory Instruments Act 1946 should be placed on the statute book in respect of codes of practice, not least so that Members of both Houses know the precise effect of what they are doing. One of the foremost principles of the Renton Committee was to promote certainty in the statute law, and an inquiry of this nature by the Law Commissions followed by a statute would, in my view, import certainty where there is doubt now.
When I read the report of the debate—which I unfortunately could not attend—of 9th December on the police codes, I found what seemed to me a distinct difference of opinion on the legal effect of those codes. The undisputed fact that breach of the codes by the police can give rise to a disciplinary offence does not mean that there is any redress before the courts or anywhere else for a breach—and that seems to me a very serious thing to say, but it has been said most clearly by the noble Lord, Lord Campbell of Alloway—except in the very rare cases of perversity or breach of the ordinary accepted rules of fairness. The difference of opinion on 9th December was remarkable, in view of the fact that the codes of practice in the Police and Criminal Evidence Act had been freely debated in both Houses during the passage of the Bill. So that alone, to my mind, is an index of the need to codify the use of codes of practice.
But I grant that this is not an easy matter. Like the noble Lord, Lord Renton, I have looked at the statutes incorporating codes of practice over the last 20 years or so. Not only were they few and far between until quite recently—say, 10 years ago—but they were also of a different character on the whole. Leaving aside the best known code, the Highway Code, they tended to be 1092 of an administrative or executive character, a typical example, which has already been referred to, being the codes under the Health and Safety at Work etc. Act 1974, in which codes of practice for the purposes of that Act are defined. It is slightly unusual for codes to be defined, so I should like to quote, as an example of an early kind of code, what that Act contained. This is the definition:a standard, a specification and any other documentary form of practical guidance".That is what we used to think of as the proper material for which a code should be formulated. It is reasonably precise and you know exactly where you are with it.
Codes of practice have now grown and have been applied to extremely sensitive areas—areas which concern human liberty. As the noble Viscount has pointed out, there is detention under the Mental Health Act and, of course, under the police codes; the exercise by the police of powers to stop and search or on searching of premises; on detention and questioning of persons and on identification of persons by the police. These are quite a different order of subject for codes of practice than the codes which were defined in the Health and Safety at Work etc. Act 1974. They are of such a different kind and character that that alone is a justification for the use of codes to be examined officially. I think that justifies the House spending two hours or so on this subject, and it justifies the noble Lord, Lord Campbell of Alloway, in asking us to do so.
I would just conclude by saying that this is something which is quite clearly with us for the near future and, indeed, for the foreseeable future. We have all heard how this has grown and there have been so many examples recently before us that they are fresh in our minds. But I am looking forward to, perhaps, the next Session or the Session after that. We have had a social security White Paper and that White Paper envisages guidelines for the administration of the social fund. In the old days, or indeed now, one would expect a ministerial circular which would be largely of an administrative character, because the area of discretion is small for the social workers who have to operate the social security system, but under the White Paper things will change dramatically.
The Act which follows the White Paper will be important. It says very clearly in the White Paper that instead of operating by the book or by rule of thumb a great deal of discretion will be given to the social workers as to the individual circumstances of those with whom they are dealing. It was said in the White Paper, or by a Minister introducing it, that there would clearly have to be guidelines for social workers who are going to administer the social funds and that these should be something less than rules or regulations and, I suppose, something more than a ministerial circular. I can only suppose that half way between rules and regulations and a departmental circular comes code of practice. That, I very much hope, will come about when social security legislation is before us. I leave your Lordships with the thought that this is not a question that will go away. It is with us now, and it will be with us for the foreseeable future.
§ 4.30 p.m.
§ Lord Elwyn-Jones
My Lords, I join noble Lords who have already spoken in congratulating the noble 1093 Lord, Lord Campbell of Alloway, on putting down this Motion and on introducing and explaining it so clearly. It was a somewhat discouraging Motion on the face of it, but it has given rise to a most vigorous and interesting debate. It has concluded with increasing pressure upon the Minister for a commitment that, in the light of the doubts and questions of an important character that have been raised in different parts of the House on this matter, it may be the time for consideration by a high-powered committee, and ad hoc committee, or the Law Commission. For the moment I cannot think of a better head to it than the noble Lord, Lord Renton. I do not suppose he will forgive me for that unfriendly suggestion. At any rate, there is room for reviewing this matter in the light of the enormous increase in the practice of the user of codes of practice.
We considered some of the implications on the criminal side in the debate on the codes of practice issued by the Secretary of State in compliance with the Police and Criminal Evidence Act. Half a century ago Lord Chief Justice Hewart fulminated against delegated legislation in his famous book The New Despotism, which was a ferocious attack on the civil servants. I confess that I myself thought it was somewhat exaggerated. Indeed, the effect of the exaggeration was such that it was rumoured at the time that all civil servants in Whitehall had a notice on their desks saying, "Power is delightful; absolute power absolutely delightful", I do not know whether there was any single instance of that being done in practice. But in the light of what has been said by noble Lords and from one's own experience, I submit that we are in the face of a new danger of uncertainty—uncertainty in legislation, in the effect of legislation and in the effect of rules governing whole ranges and aspects of the life of the community. My emphasis in my observations will be on the dangerous impact of the use of codes of practice in the criminal field. In the civil field, I see the value of codes of practice in the ways that have been indicated but subject to the changes and reforms that have been called for.
In the criminal field, uncertainty is indeed the enemy of the law, particularly of statutory law. The main charge which can be levelled in general against codes of practice is that they create a considerable area of greyness and uncertainty. It is important to bear in mind that in so far as these criticisms are justified—and I think they are; and they have been given a good deal of authority by notable speeches today—there is taking place what Mr. Baldwin and Mr. Houghton of Brunel in their valuable piece of writing on this matter have described as,a retreat from primary legislation in favour of government by informal rules of indeterminate status".It is a sinister development and one which needs to be very carefully considered. It takes place when two other factors are operating upon our law. First, there is the steady and relentless growth of delegated legislation which grows apace from year to year. Then there is the vast mass of European legislation imported into our law by Section 2 of the European Communities Act 1972. Those rules and the European legislation cover a very wide range of subject matter from various and sometimes not clearly identifiable sources.
1094 It has been fascinating to hear from noble Lords, particularly in regard to the detail given by the noble Lord, Lord Renton, about the extent of the increase in user of codes of practice. This has been done by varying administrations. I cannot put on a cloak of virtue or innocence in this matter. I have no doubt that the administration in which I took part had a hand in this exercise. I shall not say "careless exercise", because that would be too much criticism. Successive administrations have used the codes but largely and principally in civil law situations. There, of course, they could well have use and value. The planning field has been mentioned.
I have been delighted to hear from the noble Viscount, Lord Colville of Culross, that there has fallen upon his shoulders the task, which must have been an appallingly difficult one, of preparing for a code of practice in the mental health field. I am sure that we are all most grateful to him. Those of us who are involved and work in that field will be waiting with anxiety to see what Parliament makes of it in due course. As the noble Viscount has said and as has been indicated, his draft is not burdened with the intention of finality but is intended for further discussion. Therefore, there is clearly room in the civil field for the addition to legislation of codes of practice so long as they are done effectively and clearly and with proper authority.
In the civil field, in the common law system there is room for what one might call shadowy fringes in its development, but there should not be room for such latitude and uncertainty in the criminal field. The Police and Criminal Evidence Act was perhaps the first express and major incursion of codes of practice into the criminal field. As the noble Lord, Lord Renton, has indicated, in the highway code and in other places there have been incidental consequences that can result in criminal proceedings arising. But here in the Police and Criminal Evidence Act we had to consider a code which had immensely important potential significance, first, for the police themselves and for the nature and extent of their powers and the guidance in how they should be exercised.
Then there is the individual citizen and the protection that should be accorded to him in the course of legislation deliberately intended, in view of the threat or challenge of crime, to increase and enlarge the powers of the police.
The mischief—if I may put the matter as strongly as that—of the uncertainty of the code of practice under Section 67 derived in part from the trigger mechanism provided, to use the language of the noble Lord, Lord Renton, and provisions of Section 67(11) of the Act itself. The words have already been referred to:In all criminal and civil proceedings any such code shall be admissible in evidence; and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.My Lords, what does that mean? What help is given to the judge? He has to take it into account. He has to read it. Does he have to pay attention to it? What weight has he to give to it or any part of it? Here is an important criminal provision and it will not do. It leaves the matter in a state of total uncertainty. It does 1095 not indicate, for instance, that if a breach of the provisions of the code in the course of taking statements from a potential witness by the police is established that that should automatically or generally result in the exclusion of the evidence. There is no such commitment or suggestion. It is left totally at large. As has been said by the noble Lord, Lord Henderson of Brompton—and we discussed this in some detail when considering the Police and Criminal Evidence Bill—there is no remedy provided for the injured citizen should he suffer from the abuse of power and abuse by the police of the provisions of the code, should such arise. The matter is left uncertain and completely in mid-air.
Therefore, I venture to submit that it is indeed timeous for this matter to be carefully and fully reviewed afresh. The Statute Law Revision Committee performed a great service. It became a watershed in the attitude towards legislation. I think that it is time now for a fresh look at the codes of practice, especially in the context of the parallel developments which I have ventured to describe as taking place.
There should be greater precision as to the exact intention of Parliament itself in relation to the codes of practice. That was so well expressed, if I may say so, by the noble Viscount, Lord Colville. At least we should know what is the intention and purpose and where we go from there. I venture to submit that there should be in any code, especially one affecting the criminal law, a clear enunciation of the intention of Parliament so far as concerns the status of the particular code and it should be spelt out in the clearest detail in the enabling section; in the triggering mechanism which the noble Lord, Lord Campbell, so clearly and helpfully identified. That is absolutely crucial.
Then, where codes enshrine fundamental human rights, the rights of civil liberty, the sanctions in relation to a breach of the codes, and particularly in the field of admissibility of evidence, must be stated and must be potentially severe and effective if those fundamental rights are not to be eroded. As I have submitted, words like "shall be taken into account" should be rejected as wholly inadequate and be replaced by precise and specific provisions.
I now mention one further matter which I think should be taken immediately into account; namely, that wherever possible the code which it is intended to bring into existence after the passing of an Act should be available in fairly final form when the relevant legislation is passing through Parliament in so far as that is possible. It may not always be possible, but at any rate there should be some attempt. Far too many codes are sanctioned more or less as blank cheques. We have already been reminded of the limits for parliamentary action which in any event exist. I share the plea that the codes should be more readily available. It took an excessive time in our brilliantly efficient Library for me to lay hands on one or two of the codes which it is useful to study.
What sounded like—and I say this without offence to the noble Lord who initiated the debate—a mere academic exercise which on the face of it was perhaps more suited to a symposium at a university, has turned 1096 out in the event to raise very important constitutional, legal and parliamentary questions. We await with impatience the answer from the noble and learned Lord who is to reply to the debate.
§ 4.46 p.m.
§ The Lord Advocate (Lord Cameron of Lochbroom)
My Lords, perhaps I may begin by thanking my noble friend Lord Campbell of Alloway for tabling this Motion with the encouragement of the noble Lord, Lord Henderson of Brompton. It has been a great pleasure to hear him also speaking on the Motion before the House today. It has given us an opportunity to debate a subject which noble Lords have clearly indicated is of considerable importance in modern legislation. The debate has, I suggest, been a useful, constructive and wide-ranging one. Indeed, our thanks are due to my noble friend Lord Campbell of Alloway for the clarity with which he analysed the issues in his opening speech and allowed the debate to concentrate on the important issues.
In what I say I shall endeavour, so far as I can, to cover the points made by noble Lords during the debate, but your Lordships will perhaps forgive me if I am not able to cover them all. I am bound to say that I come as a novice to the legislative process. I have come in on the act, as it were, very shortly before rising to speak, but I recognise that today we are concerned with codes of practice which have some statutory basis. There are many voluntary non-statutory codes setting out standards of practice or behaviour in various fields; but I suggest that the problems which my noble friend perceived do not arise in connection with such codes.
Perhaps in parenthesis I may say that the noble Lord, Lord Airedale, made reference to the case of Patchett. I am subject to correction, but I have a suspicion that the case related to departmental circulars rather than the statutory codes of practice with which we are concerned today. Therefore, while I accept the twice blessed and four times cursed comment of Lord Justice Streatfeild about the circulars, I think that we are dealing with something which may be called into being by statute and then becomes twice blessed or twice cursed according to how you like to look at it in consequence thereof.
So far as I can judge from your Lordships' speeches, there appears to be general agreement that there is a place for codes of practice with statutory authority. Statements of what constitute good practice may be very technical and detailed; they may be too imprecise to be readily expressed as legal duties and in such cases a code of practice authorised by a statutory provision will provide the necessary guidance in a form which does not clutter up the statute book and is sufficiently flexible to be altered in the light of developments in the area to which it relates.
In regard to its terms, it depends on, first of all, to whom it is addressed, and, secondly, the purpose for which it is intended. I entirely agree with the noble and learned Lord, Lord Denning, about the requirement for simple language—one cry which I think found an echo in the hearts and indeed the voices of other noble Lords today, not least my noble friend Lord Colville of Culross—and I entirely accept that point, though I 1097 suggest that perhaps my noble friend might now have even more sympathy for the task of a parliamentary draftsman than he did before.
I suggest that the matters which concerned my noble friend in opening this debate are in broad terms these: first, whether the variation in the statutory provisions introducing such codes and in the legal effect which such codes may have is capable of causing confusion and uncertainty on the part of those affected by the codes; and, secondly, whether the use of codes of practice rather than primary or secondary legislation is restricting the legislative role of Parliament. As a Scots lawyer, I am bound to say that I find a great attraction in the point which was made by my noble friend Lord Renton and echoed by the noble Lord, Lord Henderson of Brompton, that there is a need to get back to first principles in considering these questions.
As regards the first question, I think there were identified a number of different forms of what were termed "trigger clauses" according to the legal consequences which flowed from them. There is of course a category of provisions which are silent as to the legal effect of the code they introduce. I think that both my noble friend Lord Campbell of Alloway and my noble friend Lord Renton made reference to the code which related to the convenience of the disabled in using public transport vehicles, provision for which was made in the Transport Act 1985. In such cases the code is nothing more than what it appears to be; namely, a statement of what constitutes good practice in the area to which it relates.
The code is not intended to have any legal effect but is simply to provide guidance, and I think that in that case my noble friend Lord Renton is correct in saying that there was in fact no requirement that the code should be submitted to Parliament when it was drawn up. While one may of course argue that the subject matter of the code is sufficiently important to justify primary or secondary legislation—and I shall return to this point in a moment—the legal status of this type of code is fairly clear.
Then there is the category of codes introduced by a clause which does contemplate possible legal proceedings against a person and provides that breach of the code does not of itself give rise to civil or criminal liability. In such a case the clause provides that the code is admissible in evidence in a court or a tribunal and that the court or tribunal shall, if it considers provisions of the code to be relevant, take them into account—and this, I think, is now much the most common type of code.
Again, the legal effect of such a code is really limited. For example, if there were an action in which it was maintained that loss had been caused by the defender's method of carrying out some duty, it would be relevant to the outcome of the action to prove to the court what was the generally accepted way of carrying out the duty. For instance, the pursuer might call an expert witness to explain the matter to the court, and I am sure that the noble and learned Lord sitting opposite, Lord Elwyn-Jones, has frequently experienced these kinds of cases. If, however, there were a code of practice relating to the question in dispute, I would suggest that it seems perfectly 1098 reasonable in determining the issue of liability that the court should take the code into account to the extent that it is relevant.
As I have said, the code is a statement of accepted good practice and I suggest then that it is appropriate that the court should take it into account. A provision of this nature does not of course prevent either party to an action from showing that the matter in dispute has been dealt with satisfactorily in a way other than that stated in the code, and therefore the code does not of itself by virtue of breach of it give rise to either civil or criminal liability.
There were, I think, other codes to which reference was made—and which my noble friend in opening suggested gave cause for some concern on the ground that they do have some legal effect in civil or criminal proceedings. The highway code is an example of a code which, as has been said, has effect as tending to establish or negative liability in civil or criminal proceedings; and the noble Lord mentioned codes under the Health and Safety at Work Act as having effect in criminal proceedings. Certainly it is true, as the noble Lord, Lord Renton, pointed out, that these codes are not subject to parliamentary scrutiny.
I suggest that these codes are very much the exception rather than the rule. Subject to what I have to say about the role of Parliament in relation to such codes, it is however surely right that the existence of a code of practice governing conduct which may be an issue in legal proceedings should be acknowledged. If a code represents generally accepted standards of practice in relation to a particular matter, surely it is reasonable to say to a party in legal proceedings: "These are the accepted standards. What you have done does not conform to them. It is therefore up to you to show that your way of doing things is equally satisfactory".
Failure to observe the provisions of the code does not thus in itself render a person liable to any civil or criminal proceedings. What it does—and I instance the case where a code such as the highway code is relied upon by a party to the proceedings as tending to establish the liability which is in question—is to place on the other person the burden of proving that that conduct, which was not in accordance with the code, was nevertheless in compliance with, or not in breach of, his legal duties, whether they be statutory or common law.
In addition to the examples mentioned by noble Lords, there are of course cases in which compliance with the provisions of a code may constitute a defence to a particular charge. The Control of Pollution Act 1974 contains examples of such cases. Where, for instance, Section 31 creates an offence of polluting streams or controlled waters, there is a defence if an accused person can show that the entry of the pollutant into the water was in accordance with good agricultural practice. The section goes on to provide that any practice recommended in a code approved for the purpose by the agriculture Ministers shall be deemed to be good agricultural practice.
A similar provision is to be found in the case of a person accused of contravening a noise reduction order in terms of Section 66, where there is a defence if he proves that he used the best practicable means to 1099 prevent the noise or minimise its consequences. Under Section 71 of the Act the Secretary of State may issue codes of practice on appropriate methods of noise reduction or may approve codes issued by others.
Thus the references to best practicable means are to be interpreted having regard to such codes. I would say in answer to the noble and learned Lord, Lord Elwyn-Jones, that there is a use of codes in criminal law where the shadowy fringe or the uncertainty which appears in the legislation itself is in fact made stark and clear by the codes. So with very great respect to what the noble and learned Lord has said, I suggest that codes of practice still have a part to play in certain of our criminal laws.
All these cases, I submit to your Lordships, are examples of the general proposition that where a code of practice exists, it is right and proper that it should be taken into account in any proceedings which raise issues to which the code of practice is relevant. The provisions in the primary legislation—the trigger clauses—regarding the weight which courts are to give to such codes do not create or confer enforceable rights; they are simply part of the rules of evidence. They give rise to what I think the noble and learned Lord, Lord Denning, in the course of his speech to this House in the case Brown v. Rolls-Royce Limited, once called the provisional burden of proof upon a party. I apologise for mentioning a Scots appeal but it is one which has become fairly well-known to me in the course of my experience as a lawyer.
§ Lord Cameron of Lochbroom
Indeed, my Lords, it is authority in Scotland and of undoubtedly persuasive value even south of the Border and in Wales.
There are a few instances, such as the provisions which introduce the Highway Code, where compliance or non-compliance with the code may have an important bearing on the outcome of civil or criminal proceedings, but these instances are, I think, exceptional and represent the extreme end of the spectrum of legal effect. Any obligation, breach of which would result in civil or criminal liability, I suggest, should be in the primary or secondary legislation: and it is breach of that obligation, and not breach of any code relating to the obligation, which results in civil or criminal liability.
That leads me on to the second issue which I see as arising in this debate; that is, the issue of parliamentary control of codes of practice. I think that it was suggested in the consideration given by my noble friend in opening that there was, as indeed there is, a distinction among primary legislation, secondary legislation and codes of practice. As I rather understood what he said, he was suggesting that codes of practice might be restricted simply to matters of exhortation or guidance, having no legal effect. I suggest that that may be more easily said than done.
Much of what is contained in codes of practice is extremely detailed and technical, and does not seek to impose legal duties. To include it in subordinate legislation would create a substantial increase in the already large volume of statutory instruments without any corresponding benefit in terms of legal certainty as 1100 to the status of the code. I readily accept that a provision, breach of which creates civil or criminal liability, ought to be in primary or secondary legislation; but, as I indicated earlier, most of the codes which we have considered contain an express provision to the effect that breach of their provisions does not create such liability, and in those circumstances I am unable to see what benefit there would be in including such codes in subordinate legislation.
Another factor to bear in mind is that codes which have a statutory basis are not always issued by the Government; in a number of cases the Secretary of State or Minister is given power to approve or recommend a code prepared by an outside body, such as ACAS or the Equal Opportunities Commission. It would be at the very least anomalous if the Secretary of State, when he received a draft code from ACAS for his approval, had to prepare a statutory instrument to which the draft code would be annexed, the only legal effect of the whole exercise being that the code could be used in proceedings before an industrial tribunal, a fact which would already be stated in the original primary legislation.
I suggest to your Lordships that the important point is not so much whether a particular matter is dealt with in a code of practice or in subordinate legislation, but rather the extent to which Parliament has control over the contents of a code which may be relevant to the rights of individuals in legal proceedings. I think that throughout the debate in a sense that has been the touchstone—the point to which noble Lords kept coming back frequently.
If the provisions of a code are capable of being introduced into and affecting the outcome of legal proceedings, even if only as to which party has to discharge the burden of proof, I consider that in principle it is right and proper that the trigger clause should provide for the code to be laid before Parliament and for your Lordships' House and another place to have an opportunity to consider the terms of the code and to express a view on it through a form of negative or affirmative resolution procedure, according to the importance of the subject-matter. That means that Parliament at the outset has to consider the statutory basis from which the code of practice takes birth. It also, I suggest, enables Parliament at that stage to deal with the kind of question which, for instance, my noble friend Lord Colville of Culross raised, of what is to be done with them, because that of course can be set out in the legislation itself, so that there can be no dubiety.
The noble Lord, Lord Rochester, made reference to employment law and in particular to a discussion which took place in a previous debate on the matter of a code of practice as affecting it. He will forgive me if perhaps in this debate I make no response to that. Obviously, the views expressed by the noble Lord, and indeed by all noble Lords today, will be considered by myself and my colleagues, as to whether there is need to take the matter further, as was referred to.
Certainly, as I say, such being the situation, then it seems to me that that point also to some extent answers the criticism which my noble friend Lord Renton made as to the uncertainty of the status of a code of practice. It would provide, if need be, for the 1101 form of consultation which is to be gone through; and indeed one knows that that is sometimes provided for. That seems to me something which arises at the first stage.
As I say, it is accordingly open to Parliament even now to achieve the result which I think that noble Lords have been suggesting would be appropriate. In considering a Bill which contains a provision for codes of practice it will be relevant to consider what sort of topics the code will deal with. If the topics set out in that provision are likely to give rise to the use of the code in legal proceedings, it is open to Parliament to ensure that the code cannot be issued without coming before Parliament and being approved either expressly or by acquiescence.
Certain suggestions were made as to the powers to amend a code in the course of such consideration. I think, indeed, that it was my noble friend Lord Mottistone who made reference to that. I do not think that I can venture any views on that, because that seems to me to be a matter for the House to determine as regulating its own procedure; and as it is something which involves the other place, it would require, I assume, consideration by both Houses before a solution could be achieved.
Be that as it may, I would simply say this in response to a criticism. I think that it was my noble friend Lord Campbell of Alloway who used the phrase "the slighting of Parliament". There is no slighting of Parliament if Parliament has, as it has, the opportunity to consider the primary legislation, and the terms of it, which give rise to the code of practice.
Of course, as I have said already, the majority of existing statutory provisions regarding codes of practice already provide for parliamentary control of the very sort that I have just mentioned. This applies equally to codes issued by the Government and to codes emanating from outside bodies and being approved, under statutory authority, by the Government. I suggest that that does not amount to hobbling, which I think was another phrase used.
It seems to me, too, that in the discussion of the code of practice, there is then an opportunity always for your Lordships to make clear, as you have done today, the importance of the kind of language that is used in a code. I would simply make this qualification. It has been recognised today that a code of practice cannot be placed within a particular straitjacket or skeleton because it is intended to cover such a wide variety of circumstances—for guidance and the like. The idea that it should become formalised is not one, I would suggest, that runs well with the concept behind codes of practice as they are. Indeed, the instance of the code that has been prepared under the Mental Health Act 1983 seems to establish that very point.
My noble friend Lord Campbell of Alloway suggested a possible system for scrutinising draft provisions in Bills which would permit codes of practice. Certain of your Lordships, especially my noble friend Lord Mottistone, went slightly further in this regard. I think, perhaps, that my noble friend himself appreciated some of the practical and constitutional difficulties that would arise in any proposal to scrutinise a draft Bill before it had been introduced into your Lordships' House or another 1102 place. I appreciate that it is helpful to have sight of a draft code when considering a trigger clause. The noble and learned Lord, Lord Elwyn-Jones, drew attention to that fact, as did certain other noble Lords. Indeed, it is helpful to see draft regulations—for instance, when considering a regulation-making power. But it is not always possible. The example under the Mental Health Act is again pertinent. It may take some time to draw up a code. There may have to be discussions and consultations with interested bodies. It may be that the power to issue a code is not intended to be exercised immediately. But the absence of a text of a draft code should not cause undue difficulty. I suggest, as I did earlier, that the primary legislation, the trigger clause, will specify what topics the code may cover, and it should be possible to judge from that provision how important the code is likely to be and what controls, if any, might be appropriate.
Reference was made to the code of practice under the Police and Criminal Evidence Act. Your Lordships will perhaps forgive me, since there was a debate on that code a short time ago, if I do not deal further with that particular matter. It was that debate, as my noble friend indicated at the outset, that gave rise—
§ Lord Cameron of Lochbroom
—along with the encouragement he had elsewhere, to this debate today. Indeed, as I am suitably reminded, this was the trigger for the debate.
Mention was also made of the Animals (Scientific Procedures) Bill that is, of course, before your Lordships' House tomorrow. Again, perhaps your Lordships will forgive me if I do not anticipate anything that takes place tomorrow, nor that I comment upon the terms of the letter that the noble Lord, Lord Airedale, received from my noble friend the Minister.
The use of codes of practice has grown up over the past 15 or 20 years as a means of providing guidance in a clear and, it is intended, helpful way, and in a form that is sufficiently flexible and allows for the inclusion of detail and of material that it would not be appropriate to put in primary or secondary legislation. Where it is envisaged that such codes should have any form of legal effect in relation to individuals, the Government accept that Parliament should have similar powers to those that it has in relation to subordinate legislation. Beyond that, I would not be prepared to go today. At the end of the day, and particularly in the light of what has been said and focused upon in today's debate, it is clear that your Lordships will now look at codes of practice with a very much more practised eye than has perhaps been used previously.
Today's debate has very helpfully focused attention on the issues that arise when considering statutory codes of practice and the provisions introducing them. I suggest that the debate will be a useful one for many to consider in the discussions that this House and another place may have on codes of practice in the future. I would simply say at this stage that I am not persuaded that there is any reason to take certain of the lines, proposed, for instance, by the noble Lord, Lord 1103 Henderson of Brompton, and others, in establishing further skilled consideration of the whole topic of codes of practice. This is, I suggest, something that the House itself is fully capable of dealing with in its own deliberations where the occasion arises.
§ Lord Renton
My Lords, before my noble and learned friend sits down, would he care to comment on the suggestion made by myself and other noble Lords that where a code of practice contains a repetition of statutory provisions there should be an indication of what those provisions are?
§ Lord Cameron of Lochbroom
My Lords, again, I would simply say this. That has the merit of concentrating the attention of the reader as to where the provision is drawn from. It would appear from what has been said that a draft code is already in existence where that form is followed. Obviously, as I have said already, my colleagues and myself will pay particular attention to the criticisms that have been made about codes of practice in the past. That seems to me a suggestion that is eminently sensible for those who will be responsible for drawing up codes of practice in the future.
§ 5.17 p.m.
§ Lord Campbell of Alloway
My Lords, this is no trite acknowledgement. I am really most grateful to all noble Lords who have spoken in the debate. Having listened with close attention to what they have had to say, I am at last beginning to think that I understand a little about the subject. It really has been for me an education to listen to your Lordships. I should also like to thank my noble and learned friend the Lord Advocate for his contribution.
It seems to be the general sense of the House that there ought to be parliamentary control and that, where possible without too much rigidity, the draft proposed code should be laid with the trigger clause so that both Houses of Parliament can understand what they are doing. Some means should be devised to try to ensure this. Various means have been suggested. It seems also to be the sense of the House that the present situation is not at all satisfactory. This is not really anyone's fault. It has simply arisen over the last few years and has produced a situation that no one has really got round to dealing with. In those circumstances, I am sure that all your Lordships will be grateful to my noble and learned friend the Lord Advocate for having said that he will consult with his colleagues as to what may be done about it.
I have to express my gratitude to the Executive, the departments of state—the Home Office, the Department of Transport and the Department of Employment—who have provided me with the inaccessible material without which I should not have been able to open the matter. However, this is an aspect that has been touched upon.
There is only one matter which, with your Lordships' leave, I would wish to commend to my noble and learned friend when he consults with his colleagues. It is on the question of what should be primary legislation, what should be secondary legislation, and what should be embodied in a code of practice. As far as what should be embodied in 1104 primary legislation and is not, an example is the provision of Item 31 of the Employment Act code about picketing, which limits pickets to six. That is a simple matter which goes straight to individual rights in a quite categorical situation. Surely that should not be in the commmon form code, which is subject to unchallengeable discretion, but should be there by the will of Parliament on the face of a statute.
I would ask my noble and learned friend whether, when consulting with his colleagues, he could make that point to them. I renew my thanks to all your Lordships and I beg leave to withdraw the Motion for Papers.
§ Motion for Papers, by leave, withdrawn.