Government Bills: Drafting Scrutiny (Hansard, 17 December 1987)

§ Lord Renton
My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.

§ Lord Belstead
My Lords, most Bills go through several drafts before publication, each of which is subjected to critical examination by the legal 826 advisers and responsible officials of the sponsoring department, of other interested departments and, in appropriate cases, of outside bodies. In addition, drafts are always shown to the law officers. Account is taken of all comments received. If particular provisions still cause difficulty after publication, the Government are always willing to consider whether they are capable of improvement.

§ Lord Renton
My Lords, may I thank my noble friend for that quite full reply? Is he aware that in recent years much valuable parliamentary time has had to be spent in curing drafting and other obvious defects in Bills presented to Parliament, and that those defects could have been spotted before publication? Although further prior scrutiny might take up a short while, is my noble friend not aware that Bills would receive the Royal Assent sooner if less time had to be taken up in curing those defects? Have the Government therefore not considered this solution which would be to their advantage and that of Parliament?

§ Lord Belstead
My Lords, I understand the force of the question which my noble friend asks. The difficulty with much legislation undoubtedly arises from the complexities of the subjects which they cover. However, my noble friend is asking: should there not be prior scrutiny? I think, without breaching the normal conventions about discussing the workings and membership of Cabinet committees, most of your Lordships will know perfectly well that through the committee system of any government my noble and learned friend the Lord Chancellor, my noble and learned friend the Lord Advocate and the English law officers as well have the opportunity to scrutinise and raise points about a Bill in that committee system. In practice my right honourable friends whom I have mentioned will normally always have seen a Bill before it comes to a committee, so that any points of interest to them will already have been settled.

§ Lord Elwyn-Jones
My Lords, would the Government be willing to consider the proposal in Sir William Dale's admirable book on drafting that a committee should be interposed before a Bill is laid before the House to examine the draft of the Bill and prepare any suggested amendments? This procedure is carried out in a number of democratic parliamentary countries. Would it not be of considerable help both to the House and indeed to Ministers?

§ Lord Belstead
My Lords, again I recognise the importance of what the noble and learned Lord is saying. I shall certainly draw the attention of my right honourable friends who are concerned in these matters to what the noble and learned Lord has said. Perhaps I may add one more point. In talking about an additional constraint or supervisory process on the parliamentary draftsmen, the noble and learned Lord will forgive me if I remind him of the following point. In 1977 the noble and learned Lord (then speaking as Lord Chancellor) pointed out in an Answer to a parliamentary Question that the drafting recommendations of Lord Renton's report are taken 827 into account in the drafting of all government legislation. But, the noble and learned Lord said, the Government considered, that it is essential that Parliamentary draftsmen should retain discretion to apply the recommendations"— of the Renton report— in accordance with the requirements of particular legislation." [Official Report, 31/3/77; col. 1095.] I am only saying gently that I do not think at that time it was in the mind of the noble and learned Lord that there should be an additional committee supervising the drafting of parliamentary draftsmen.

§ Lord Elwyn-Jones
My Lords, has there not been a flood of legislation since then to remedy that excessive caution in the former Lord Chancellor's observations?

§ Lord Belstead
My Lords, the legislative burden of your Lordships' House is indeed heavy. I suggest to your Lordships that constraints of time imposed by the parliamentary programme have however been a feature of legislation of all governments.

§ Lord Grimond
My Lords, is the Minister aware—

§ Lord Simon of Glaisdale
My Lords, would the noble Lord consider that one of the solutions to this problem would be the restoration to the Cabinet Legislation Committee, to which he has already referred, of the task of scrutinising the drafting of all legislation, with the remit that nothing shall be introduced the provisions of which are not immediately and clearly comprehensible to those affected by it?

§ Lord Belstead
My Lords, I was endeavouring in my first supplementary reply to suggest this. The particular question which is being raised by the noble and learned Lord, Lord Simon of Glaisdale, is covered at present by the scrutiny which my right honourable friends and my noble and learned friends undoubtedly give to Bills by seeing the Bills before they reach a particular committee. It is also covered by shaking out any points of interest in departmental discussions. To go down the road which the noble and learned Lord is suggesting would consume enormous amounts of time. I reckon that that was the reason why it was relinquished.

§ Lord Harmar-Nicholls
My Lords, if the recommendations behind this Question were successfully carried out what occupations would the Minister suggest for the then permanently unemployed lawyers?

§ Lord Belstead
My Lords, if my noble friend is referring to legally trained Members of your Lordships' House who look through the drafting of Bills very carefully all I can say is that I think that whatever happens there will always be a pretty full-time occupation for the revising work of your Lordships' House.

§ Lord Grimond
My Lords, is the Minister aware that there will be almost unanimous agreement with 828 the efforts of the noble Lord, Lord Renton, to improve the legislative process which he has pressed for many years? Does not the Minister also agree that it is not so much the need for another committee that is in question, but the need to have fewer and shorter Bills which do not attempt to cover every conceivable point which may arise? Is it not wholly unfair and unconstitutional to use the great legal talents of your Lordships' House virtually to redraft government Bills when they are unpaid devoted Members of the legislature?

§ Lord Belstead
My Lords, the desirability of having somewhat shorter and simpler legislation is something that we should all like to see carried out but it is a desirable objective which I am afraid is not always achieved.

§ Lord Shepherd
My Lords, is the Minister satisfied that the Government can retain and recruit lawyers of sufficient quality and calibre for the needs of parliamentary drafting, particularly in view of the weight of legislation that is now put before Parliament?

§ Lord Belstead
My Lords, on 16th July in answer to a parliamentary Question I reported to the House that the number of parliamentary draftsmen was being increased from 24 to 30.

§ Lord Nugent of Guildford
My Lords, does the Minister consider in his function as Deputy Leader of the House that as 16 minutes have now passed by on two Questions it is time that we moved on to the next Question?

§ Lord Molloy
My Lords, there are no Speakers in this House to order me to sit down. I should like to ask the Minister to take into very serious account the points made by the noble and learned Lord, Lord Simon of Glaisdale, which have been previously made by the noble and learned Lord, Lord Denning. Those points were that, due to the importance of Bills that later become Acts, those Bills should be reasonably understandable by the ordinary public. It might be a very good idea to have people who are not lawyers examining some of the Bills because they could make suggestions which ordinary people would make if they were given that opportunity.

§ Lord Belstead
My Lords, I shall as always on behalf of the Government consider the exchanges that have taken place on this particular Question.