Legislative Drafting

HL Deb 11 November 1987 vol 489 cc1417-49

6.11 p.m.

The Earl of Selkirk rose to call attention to the preparation and drafting of parliamentary legislation; and to move for Papers.

The noble Earl said: My Lords, I beg leave to move the Motion standing in my name on the Order Paper. In a curious way, it has kinship with the subject that we have just been discussing, but it is a subject of delicacy and considerable importance. I should like to say immediately that I do not cast any reflections on those labouring in the interests of this country, but I shall make comments on the system under which they operate.

This issue began in a Committee stage last May when I saw what I called a gross error in the drafting of a Bill. My noble friend Lord Glenarthur immediately accepted what I said and an amendment was incorporated. That brought home to me how important it is, in the system of government that we have, not to allow errors to creep through, because they then become a precedent which will exist in this country.

The system of our government is evolutionary. Each time the Royal Assent is granted something is added to the structure of our law, and we must not underestimate its importance. It was said by one of our parliamentary counsel: It is always easier to get something through Parliament if one can point to the fact that it has been done before".

In other words, once something has been done it becomes a permanent element in our structure.

We have no fundamental laws and no constitution. One may say that we have been lucky because we have not had a revolution for 300 years—since the days which Macaulay called the happy and useful revolution. Comparing ourselves with the French, they are struggling under the Fifth Republic and I dare say they are finding it difficult. I believe that we are left with the important duty of ensuring that we do not allow mistakes to enter our system.

The laws of most Commonwealth countries are founded on the common law of England. From my experience in south-east Asia, I can say that they gloried in that fact and found the utmost confidence and pride in their basic language. I do not know whether they take the same view as regards our statutes. I think that we can help them, because we are coming through this extraordinary 20th century with its amazing complications, the astonishing changes that have swept over the country, whether we look at the technology or the great social problems which have arisen from our vast conurbations penetrated by drugs and terrorism. It is a problem which we have had to face and I think that it accounts largely for the volume of legislation passed in the second half of the 20th century. Never in our history have we tried to pass so many laws in such a short time. I shall not say that we have done it badly, but I am bound to say that we have not done it so well.

We in this Chamber are at present endowed with a large number of ex-Lord Chancellors. That greatly enriches our company and we should be proud of it. However, without naming people, I shall take the liberty of reporting what some previous Lord Chancellors have said about our legislation. One said: I would be the last person to say that I understand this Bill".

And again: The Bill is a gigantic intellectual puzzle".

One asks the question: for whom are we legislating? If we are not legislating for the benefit of Lord Chancellors, who is getting the benefit of our legislation? It may be the courts of law, the departments or the man in the street.

I have quotation from a parliamentary counsel: I have never heard of anyone who wanted to read an Act of Parliament".

That is a most extraordinary statement, although I have some sympathy with it. But for whom are we legislating?

Our statutes are produced by a rather curious conclave which is highly secret and which takes place between the department and the parliamentary counsel. Nobody knows exactly what happens in the discussions. We do not know whether the major issues relate to the parliamentary counsel or the department. I should like to repeat the words of the noble and learned Lord, Lord Scarman, who put the matter concisely. He said that our statutes are complex, detailed often to the point of unintelligibility, and seldom contain any broad principles. I believe that situation to be intolerable. I ask the House to press Her Majesty's Government to investigate whether they can make the system work better.

I shall not pretend that this problem is new. In the early part of the reign of Queen Victoria our statutes were the subject of ridicule with sarcasm. I remember that Lord Jowett was constantly saying how worried he was about our statute book. The noble and learned Lord, Lord Gardiner, was the most active and determined of our Lord Chancellors to obtain reform. In Who's Who he lists one of his recreations as law reform, which is a remarkable confession. He was responsible for introducing the Law Commission of England and Scotland, and I believe that to be one of the most important legislative steps that has been taken. From the contact that I have had with the noble and learned Lord, I believe that he is still keen on carrying on with the job.

Ten years later the noble Lord, Lord Prior, whom we have had the honour to welcome in this House today, set up the Renton Committee. I never understood the Renton Committee and the fact that although everyone says it was a splendid committee they do practically nothing about the recommendations. There was the textual introduction and certain improvements in regard to Scottish legislation which I warmly welcome, not least the appointment of a senior Scottish member of the faculty.

One asks how we can help. Can we make any suggestions? We all wish to help the Government because this is a matter in which we are all interested. I should like to see Notes on Clauses more widely employed. If we are trying to pass the laws of this country it is important that we should know what we are doing. If that were more widely accepted, I think that would be welcomed by all parts of the House.

The next point I should like to make is that I believe we should take a much wider view of what is done by other countries. There is a certain, shall I say, hauteur among lawyers, who, I say with respect, are not very willing to admit that other countries can do better than we can. We should be more modest. Fortunately, we have a leader in the person of Sir William Dale, who is the secretary of the Institute of Advanced Legal Studies. He has made a big contribution to the whole subject. It is worth reading the book that he has written, not least for an account of the conference that was held last year between the leading draftsmen of France and this country. It is a fascinating document, written with an outstanding degree of frankness. I found it extremely interesting.

One of the points that was brought out in respect of France was that for much of their drafting laymen rather than lawyers are used. They are of course laymen of high education. They receive a note from the Prime Minister describing the structure of the legislation that they are handling. Sir William Dale adds, for his own part, that the French have a greater respect for their language than we have for ours. That may well be true.

The main point that I wish to make and on which we should press the Government concerns the question of whether anybody has authority for the quality of our legislation. I am afraid that the answer is broadly no; no one is responsible for it. That is the thought that I want to urge into the mind of the Government.

My feeling is that this is a matter for the noble and learned Lord the Lord Chancellor, who I think should be in charge of the quality of legislation. There is a body called the Statute Law Committee. It has not been explained to me in detail exactly what that body does but by name at least it seems to fit the role that I have in mind. Let us press the Government to put in the best possible order the great productions of this House; namely, our statutes. I beg to move for Papers.

6.22 p.m.

Lord Diamond

My Lords, I am sure that the whole House is grateful to the noble Earl for the opportunity to discuss this matter. There is nothing formal in my remarks; I really am sincerely grateful because this debate gives me the opportunity to pay a tribute, which I have long wanted to pay, to a body of very skilful, dedicated, extremely hard-working and thoroughly loyal men. I refer to parliamentary counsel, who undertake the drafting of Bills.

I apologise for bringing my personal experience into the debate but what I have just said is based on six years' experience as a Minister handling far more than the average amount of legislation and on 10 years as a chairman of various Standing Committees. As your Lordships know, the chairman of a Standing Committee in the other place exercises many of the functions of the Speaker in the other House where the procedure is very different indeed from that followed in this Chamber.

It is the Minister who is responsible for legislation, I am sure that all noble Lords will follow the good example set by the noble Earl in not attempting to criticise those who assist the Minister and give him advice. The Minister is here to accept responsibility for what he decides. Of course it is absolutely true that once the Minister has decided on the general shape of legislation which the Government may be initiating, it is for the parliamentary draftsmen to give form to it, and it is only when they start on that process that a whole host of important and less important points which require an answer are thrown up.

As every one of your Lordships knows, when one goes to a solicitor and asks him to prepare a document he may be given only two sentences of instruction but he produces a document which perhaps runs to several paragraphs, all of which are necessary because from his past experience he knows that matters may arise which the lay client has not considered. That is one of his functions. The same remarks apply to the process of drafting Bills.

It is no excuse for a Minister to say that he leaves everything to the draftsmen. Of course he must leave many of the technicalities to the draftsmen but if he leaves too much to them we shall be getting into an argument which the noble Earl asserts and which I, with respect, deny; namely, that governments, Ministers and chairmen of Standing Committees do not have the foggiest idea what the legislation is about. The Minister has the responsibility of understanding the final draft as it comes to him. If he is not absolutely clear about it, his officials and the draftsman are at his service ready to explain anything that he does not fully understand. If, say, a provision seems to be one sentence too long, they can explain why that additional sentence has to be included.

As a former chairman of committees, I can only say God help a chairman who tries to carry out his function of keeping order and ensuring that every speech is relevant to the clause in question and a particular amendment to the Bill, without fully understanding what every part of the Bill is about. Of course he understands it and he is helped enormously by parliamentary draftsmen.

When a Standing Committee sits, the public can see that on the left of the chairman is the clerk of the committee and on the chairman's right is the parliamentary draftsman, who is continually advising and assisting him during the proceedings. On the other hand, the public do not see the pre-sitting conferences which have to take place and in which the chairman is advised by his officials, the clerk in charge of the Bill and in particular the parliamentary draftsman as to which amendments fail for a variety of good reasons. The chairman is indebted to them for that information and advice when making his decision to select amendments at his discretion. That of course is a key part of the function of democracy in the other place and it is a very good reason why this House must take the greatest possible pains in examining the legislation coming from the other place.

This Chamber does not suffer limitation in selection of amendments or the whole variety of restrictions that exist in the other place, and so is enabled to do a thorough re-examination of legislation. Nor do we have the guillotine, which is a most important element in all these considerations.

The parliamentary draftsmen perform a task of immense value without which Parliament would not be able to function. Although I am sure it is not the case, should any subsequent speaker feel inclined to complain about the language and the work of a parliamentary draftsman, I would reply that in the first place it is for the Minister to take responsibility for the content of a Bill. We should be in a very ragged situation indeed if every civil servant were encouraged to defend himself by writing letters to the press instead of having the Minister defend him—or defend himself if it is his responsibility—in one or other Chamber of Parliament.

Finally, I should like to say a few words about governments and their responsibility for legislation. Probably all governments introduce far too much legislation. I entirely agree with the noble Earl's comments on that score. Perhaps it is not fully realised by those who have not had the burden of government upon their shoulders that far more than half of all government legislation—indeed, I think most of it—comes not from the initiative or desire of the Government but from a reaction to public pressures of one kind or another.

The House will be debating a forthcoming Rates Bill. We all know what happened about rates during the Conservative conference in Scotland, which clearly stimulated the Government into more detailed thinking about their position on rates. We shall have to consider immediate legislation about knives and the carrying of guns, and we all know why that legislation has become necessary. Governments have to respond to that, and do it quickly.

When one hears said, "Look at all the amendments; that proves that the Government do not know what they are talking about and have not thought the matter through", I ask noble Lords to pause a moment in their thinking and to bear in mind that government have the responsibility of taking public opinion with them. For that reason we in this House especially should give adequate periods of pause between one proceeding and another, between Committee and Report and so on, so that public reaction and public experience can be fully taken into account.

When one is concerned with taxation affecting the rights of 25 million people, one is very humble about it and very glad to receive information, albeit at a most inconvenient moment. This happens when some small section of the community that one had not intended to affect in the slightest says, "We do this kind of business"—of which one has never heard before—"and this will bear heavily on us. Will you please amend the legislation so that it does not impinge on our activity unless you intended it to do so?". If one did not so intend, it is one's duty to relieve the impact of the taxation provisions that would otherwise fall unjustly on those in question.

For those reasons, I beg your Lordships not only to share with me the appreciation of the work done by parliamentary counsel but to understand the difficulties and the pressures facing governments—and we are talking about all governments here; there is no party point in the issue.

6.32 p.m.

Lord Simon of Glaisdale

My Lords, your Lordships will be greatly indebted to the noble Earl who is not only an eminent lawyer but has also held some of the greatest offices of state. When he introduces the debate as he did, one hopes against hope that at last some notice may be taken of what the Renton Committee in 1975 said was widespread concern about the complexity and lack of clarity of much of our legislation. Those words apply every bit as much today as they did then.

I can give several examples from last Session. I take only two. One was the Pilotage Bill. It contained a provision that I am confident no noble Lord in the Committee could understand, not even the Minister. By the time everybody had grumbled disagreeably about it, the Minister decided that it was unnecessary, and it was withdrawn.

The other example was an extraordinary one. It was the Local Government (Finance) Bill, which was to correct a former measure of similar nature. It was so drawn that the Government could be persuaded by the local authorities that it did not mean what they thought it meant but rather as it ultimately turned out to be. As a result corrective legislation had to be rushed through.

The Renton Committee recommended that, instead of trying to meet every envisageable circumstance, we should legislate in broad general terms laying down general rules. The committee quoted a memorandum by my noble and learned friends the Lord President of the Court of Session and Lord Wheatley, the then Lord Justice Clerk, in which they said precisely: we are used to interpreting general rules and applying them to particular situations. They said further that, if you try to lay down a stipulation to cover every situation you can envisage, you are sure to leave out something and you confuse the court which will not know what your real purpose is and in particular will not know whether the case before the court is intended to be covered by the statute. The examples that I have given already show that no notice has been taken of that recommendation to stipulate in broad general terms.

The noble Lord, Lord Diamond, was right in paying tribute to the high intellectual quality, the loyalty and the devotion of parliamentary draftsmen, but it is entirely beside the point. The point is that they obstinately insist on continuing to legislate in the terms condemned by the Renton Committee.

I want to take up one point that the noble Earl and indeed the noble Lord, Lord Diamond, made concerning the quantity of legislation. I believe it is due to two factors. The first is that the officials who have to administer the law are always conscious that it can be improved; therefore, there is a constant urgency from the Civil Service to bring in improving legislation. The second is the ambition of Ministers. One knows that some Ministers, like Disraeli with the second Reform Bill, Neville Chamberlain with the Local Government Bill and Lord Butler with the Education Bill, made their reputation by carrying through legislation. I hope that it is not just old friendship that makes me add to that list the name of the noble Lord, Lord Broxbourne, with the Mental Health Act 1959.

What is the cure for that? The cure lies purely in the machinery of government. It is the job of the Future Legislation Committee to curb those two urgencies, the urgency of the Civil Service constantly to improve its machinery and the urgency of Ministers to make a name by carrying through legislation. It is the job of the Future Legislation Committee to see that the situation does not get out of hand, as it has.

As to quality, the same goes for another government committee, the Legislation Committee, which obviously has not been doing its job, given the spate of criticism that occurred both before and after Renton. If the noble and learned Lord can assure us on those two matters, that will at any rate be something.

I have one final point. Can we not have at least one Bill framed on Renton principles as a trial to see how it works? If it works we can go forward on the Renton principle. If it fails the Government can go forward on their present policy. When I say the Government, I mean successive governments. I can remember being rather annoyed with my noble and learned friend Lord Elwyn-Jones on his very tepid reception of the Renton Committee report. If we can do those things, the debate will have been of value.

6.41 p.m.

Viscount Dilhorne

My Lords, I very much regret that I shall have to leave the Chamber before the debate has closed. I have two short points to make. I crave your Lordships' indulgence when I have to make my departure.

There are two examples of legislation enacted this year to add to those that the noble and learned Lord, Lord Simon of Glaisdale, has already recited. The first is the Landlord and Tenant Act 1987. That received Royal Assent in some haste before the general election. Many noble Lords who are present today will recall that the noble and learned Lord, Lord Wilberforce, had some clear things to say about that.

There is no need to recall the words of the sections of that Act. However, my reference relates to Sections 5 to 7. Those sections require notices to be served which confer rights of first refusal. In Section 7 the tenants are given the power to serve a counter-offer. The landlord then only has to decide whether to accept it or reject it. The statutory power given to the tenant seems to me to be purposeless if that is all it leads to. Neither I nor my brethren down the road who practise in these matters have been able to find any provision that enables some kind of process of arbitration to be resorted to if the landlord does not accept the counter-offer.

That is a good example of hurried legislation. At this stage I wish to associate myself exactly with the remarks of the noble Lord, Lord Diamond, and the noble and learned Lord, Lord Simon of Glaisdale. They said that our statutory draftsmen are men of great skill, great intellect, great honesty and great endeavour, who often have to climb a mountain that has a converse slope—one facing towards them rather than one going away from them.

The point I now wish to make is that I feel sure that that omission would have been noticed not only by noble and learned Lords in this Chamber but by all other noble Lords if the matter had been debated. That position would have been avoided if there had been a little less haste on the matter.

The second example which I seek to draw to the attention of noble Lords is one concerning the control of advertisements by means of a regulation. That regulation was issued under a power by the Secretary of State and it relates to Sections 109 and 63 of the Town and Country Planning Act. It was brought into effect on 7th January this year. I do not expect your Lordships to be immediately conversant with its provisions. It is sufficient for the purposes of the debate to say that they take up a considerable space for what they achieve. They are expressed in tortuous and convoluted language. Administrative provisions are mixed in with other provisions of law regarding what it is wanted to achieve. How it is to be achieved is thrown in at the same time. They take some five pages of legislation. The result is that there is a mass of litigation pending. I have been involved in some and was offered about 50 dock briefs only a week ago, which regrettably I had to turn down.

Those provisions are so hedged about with administrative matters that what will happen and what has happened is that either of the parties, the local authority or the person who is affected, will cut corners. They will either wilfully misconstrue what the provisions set out or will ignore them in order to try to give effect to them. That is legislation done by statutory instrument. Again there is no chance of addressing the matter.

I have only one or two other things to say. I wish to exhort those who are responsible for drafting our legislation to try to return to simple principles, to have conceived for them the whole design, to use short sentences. English is a language of short words. Its clearest expression in ordinary writing is short sentences. There are many noble and learned Lords in the Chamber today who are very experienced in writing clear, concise judgments. It would be impertinent of me as a young member of the profession to do more than to say that they are generally a delight to read. It is particularly sad that the example of the noble and learned Lord, Lord Denning, is not followed. His sentences are short, to the point and a pleasure to read. If that example could be followed by those who draft our legislation—although some might not agree with the legal content—it would be a very good star to follow. I am grateful to your Lordships for allowing me this indulgence.

6.46 p.m.

Lady Saltoun of Abernethy

My Lords, had I known how many noble and learned Lords and noble and learned lawyers would be taking part in the debate I should not have put my name down. I was tempted to withdraw but the noble Earl, Lord Selkirk, persuaded me not to against my better judgment. As a complete layman or laywoman I very much wish to support him in this debate.

Before I say anything more I wish to associate myself with what the noble and learned Lord, Lord Simon of Glaisdale, the noble Lord, Lord Diamond, and the noble Viscount, Lord Dilhorne, have said about the quality, dedication and the hard work of the parliamentary draftsmen. I want to make it quite clear that I am not in any way intending to be derogatory to them in what I am going to say.

The noble Earl, Lord Selkirk, touched upon the drafting of the Abolition of Domestic Rates Bill in the last Parliament. I wish to elaborate a little on that. Noble Lords on all sides of the House were affronted at Clause 22, which merely gave effect to Schedule 3 of the Bill. Schedule 3 gave immense and far-reaching powers to the Secretary of State to reduce the amount of personal community charge determined by any local authority if he thought it was excessive or unreasonable.

Such powers and such an important basic principle of the Bill should never have been tucked away in the schedules but should have appeared, and should always appear, on the face of a Bill in the form of a clause immediately perceivable by anyone who reads the Bill, be he expert or layman. On that occasion, as many of your Lordships will recollect, the proposed clause and schedule were totally unacceptable to the House. Finally on Report the Government, who had protested in Committee that it was too late to alter them, were obliged to take them back and amend them with only three working days to go before Third Reading or else risk losing the Bill. That must have been very hard on the draftsmen and I hope that the Government have learnt a lesson from this and will not repeat that mistake.

I wish to say a few words about comprehensibility. Quite often I, like other noble Lords, am quite unable to understand Bills or parts of Bills. I am not just talking about highly technical Bills. To start with I naturally thought that that was just my own stupidity and lack of legal training, but when I found that sometimes even some of the best legal brains in the House were as mystified as I was I came to the conclusion that it could not just be me, or not always me. It is not just that a clause in a Bill refers to a previous Act and, when one goes to that Act, one finds a reference to an earlier Act. It is a matter of drafting and use of English.

For instance, last week the noble Lord, Lord Mishcon, had trouble, along with many other noble Lords, with a new clause in the Criminal Justice Bill concerning the length of penknife blades. It was indeed a winner!The clause read: Any person who has with him in a public place without good reason or lawful authority any article which has a blade or is sharply pointed (except a pocket knife with no blade which is longer than three inches or which locks when open) shall be guilty of an offence". Was the exception for a pocket knife which was more than three inches long without a blade or for a pocket knife whose blade was less than three inches long? As drafted, one could carry a pocket knife whose blade, if any, locked when open but not one whose blade did not lock when open. I do not think that that was what was intended. It was a wonderful piece of gobbledegook. I look forward with keen anticipation to seeing what has happened to it when we come to the Report stage of the Bill next week.

That was not so much a case of double negatives, as some noble Lords thought; it was a case of negatives in the wrong place and lack of punctuation. However, double negatives instead of simple affirmatives are hardy perennials which are found in a great many Bills. I once came upon a triple negative—I cannot remember in which Bill—instead of a simple single negative.

Our troubles in this House come not so much from the quantity of legislation as from the quality. If the Bills which come to us are more carefully thought out and drafted, we shall be able to deal with them more quickly. That would reduce our workload enormously. Our job surely is not to do the detailed work of drafting and the correcting of drafting. That is the draftsman's job. The trouble is that we have such a quantity of legislation coming before the draftsmen that they do not have time to spend on it in order to get it right. If we had Bills coming before us as they should, then we should be able to concentrate on the content as opposed to the wording.

It is very important that we should have more draftsmen and that the Bills should come before us in such a way that, with very little alteration, they are comprehensible to the average layman, who will not be able to keep the law unless he knows and can understand what the law is.

6.55 p.m.

Lord Meston

My Lords, as the noble Earl said in introducing the Motion, the problems here are problems of scale. Nobody knows that better than lawyers. Perhaps I should include the noble Viscount, Lord Dilhorne, in that category as he plods to remote county courts conscienciously carrying all the law that is or might be relevant to a typical case, say, under the Rent Acts, and arrives at the other end with one arm much longer than the other.

As has been said, it is essential that the increasing quantity of legislation should not be allowed to diminish its quality. As a revising Chamber, your Lordships' House, without a guillotine, deals with the problem as best it can by sitting longer and longer hours. With justification, we are still able to say that the Bills that leave this House are better Bills.

However, the noble Earl, in his Motion, properly begs the question of whether anything more can be done at pre-parliamentary stage. Perhaps I may make three points with regard to the preparation of legislation. The best legislation is often the law- reforming legislation proceeding from the Law Commission. We should perhaps consider a mechanism whereby the Law Commission can be involved in the preparation of all draft legislation and not just that which it has had a hand in preparing.

Secondly, as has also been said, the worst legislation is rushed legislation. In that context I do not mean just short Bills, brought forward quickly to deal with a recent problem or crisis. I mean also more substantial Bills which suffer from what appears to be a last-minute rush in preparation and which come before Parliament in too raw a state.

That leads to a process recently described in the report on the working of this House as "legislate as you go". As the report pointed out, the majority of amendments in your Lordships' House are Government amendments. One appreciates that the dictates of the government timetable are often difficult to control. The noble and learned Lord the Lord Advocate will remember, for example, the Insolvency Bill introduced into the House. It was known when it was introduced that the Government had in reserve a large volume of amendments, not for consideration by this House but to be considered and put forward in another place. Surely that is something that should be avoided.

My third point is that pressures of time and volume inevitably lead to the temptation to use—and arguably to misuse—subordinate or delegated legislation. At the very worst, all Parliament sees is the framework legislation enabling the executive to produce secondary legislation at will. Objections to that go back to, if not beyond, Lord Hewart's The New Despotism of 1929. The objection is summarised by Professor de Smith: Acts of Parliament, sponsored by government Departments and passed into law with the acquiescence of a docile parliamentary majority, give the Executive sweeping legislative powers; and safeguards against the abuse of those powers are inadequate". Nevertheless, pragmatically, we recognise that subordinate legislation is a necessary evil. However, I suggest that it is essential that in primary legislation we are allowed to give guidelines and boundaries to the subordinate legislation.

I do not know whether there is any truth in a report in The Times last week of a concerted campaign by Ministers to use secondary legislation as a deliberate device to block the right of Peers to amend Bills. The fact is that the Government decide what a Bill will contain and what it will not contain. This House cannot amend and will not, by convention, vote against subordinate legislation. I hope that the noble and learned Lord will be able to give us an assurance that the temptation will be resisted. It would be a bad precedent, not only for this Government but for any Government hereafter.

One must remember, in giving the executive wide powers at any moment, that whatever the good intentions of the executive of the time, the powers can be misused at a later date. If the Government cannot resist the temptation to short-circuit the process, then I suggest that we should look again at the perfectly respectable and constructive technique which allows secondary legislation to be amended; that is to say, secondary legislation amendable with the approval of both Houses at subsequent dates. That would enable the executive to deal with future contingencies and retain for Parliament a measure of scrutiny.

Finally, and on a totally different topic, may I put in a plea against limping, piecemeal legislation. I have in mind the Consumer Credit Act which took many years to come into force. Another example was the Children Act 1975 much of which took 10 years to come into force. By that time it had in fact been repealed by enactment of the Adoption Act 1976 which itself is still not in force save as to the Short Title.

I suggest that it is a very unsatisfactory way of proceeding. Parliament now has the benefit of the Keeling schedule, which is of great assistance to Parliament when considering reforming legislation which deals with matters by way of piecemeal reforms to earlier legislation. It does not help the consumer at the end of the process. I do not just mean the man in the street. I mean his lawyers who have to try and find their way through this morass of legislation.

7.1 p.m.

Earl Balfour

My Lords, I am grateful to have this opportunity of supporting my noble friend Lord Selkirk in this short debate. I have two requests to make to the parliamentary draftsman. One is to ask him to pass what he has drafted to a friend to see whether sometimes it can be put into better English. On that point I think he can learn something from reading some of the Acts which are over 200 years old. Many of them have no more than three sections but they are in good English and cover every point superbly.

The other request I have is in the schedules to Bills. Please do not put down amendments to an amendment to another Act. In such a case it would make life a lot easier for all noble Lords if such an amendment said, "leave out section so and so and substitute", whatever it is.

Let me illustrate this. Suppose a 1987 Bill amends an amendment to a 1977 Act which amended a 1967 Act. Say that there is a statutory instrument amending the original. The poor individual who is trying to understand exactly what that section means ends up with four books of legislation on the table. The statutes in loose-leaf books are a wonderful improvement, which was started I think in 1971. The correction principle is that whenever a section of an Act is amended a new page is produced to replace the amended page. Unfortunately, quite a number of amendments to sections of Acts are more than a year old before the new loose leaf is produced. The statutes in force are catalogued into 132 groups or subjects and many more subgroups.

In any criticism of the drafting of Bills, as has already been said, it is seldom the fault of the draftsman. After all he does what he is told. I think legislation could be improved if no single Bill covered more than one of the 132 groups, or at the most two groups.

I give an example. Section 1 of the Food and Environment Protection Act 1985, Chapter 48, has been amended or affected by over 50 statutory instruments according to the Scottish Law Citator 1986. Almost as if to add insult to injury in this 1985 Act various sections are grouped under "Food"; an equal variety of sections are grouped under "Shipping" and the remainder are grouped under "Environment". Even a novel would have difficulty in covering such a wide range of subjects, let alone legislation. No parliamentary draftsman could possible cover the wide variety of subjects which exist in legislation, so Bills are often drafted by more than one draftsman. From time to time they have not compared with each other what they have done.

In such circumstances a Back-Bencher can have a field day. However, let me assure your Lordships that I shall never attempt to destroy any Bill, but where I have found contradictions in a Bill, if I have the time, I shall go through it with a fine-tooth comb to try to correct errors and to improve the Bill, even if it means putting down a string of amendments.

The computer Lexis system of statutes is the only one which is up to date but as yet it does not cover Scottish Acts.

As a final point I feel it rather irritating to have legislation pass through both Houses of Parliament, receive Royal Assent and then gather dust on a shelf for years before it comes into force. Again, to give an example, the Employment of Children Act 1973, Chapter 24, and the Gaming (Amendment) Act 1986, Chapter 11, are not in force yet according to the Scottish Law Citator 1986; but that, I must say, may be a wee bit out of date.

7.7 p.m.

Lord Henderson of Brompton

My Lords, I hesitate to disagree with something which the noble Earl has just said but I would not myself commend the words of the statute book of 200 years ago. In Chapter 2 of the Renton report we quote the words of Thomas Jefferson. He was looking at the statute book of that day. I shall not quote the very words but I strongly recommend them to the attention of the noble Earl.

Like so many other noble Lords I wished to take part in this debate, and I am very glad to do so, as I had the honour to be a member of the Renton committee. Our terms of reference were then: excluding matters relating to policy formulation and the legislative programme". I am sure the noble Lord, Lord Renton, will agree that that put a curb on us and on our recommendations. I am happy to say that the noble Earl's Motion today has no such inhibition. A number of noble Lords have spread their wings much more widely than we were able to do and they have flown into the prohibited areas of matters relating to policy formulation and the legislative programme.

I should like to record the words of the noble Marquess, Lord Salisbury, in a recent debate on the workings of this House. He said: The real problem is the growth of government legislation". He added: The simple answer is to have less government legislation". Later he further said that, a number of Bills which come before the House have not been well prepared. It seems to me to be due to pressure on the draftsmen, who are, no doubt, just as good now as they were in the past but who have had to produce more Bills than they can comfortably digest".—[Official Report, 4/11/87; col. 1040.1. When I heard those words I also heard ancestral voices. I at once turned to G. M. Young's great book, Portrait of an Age: Victorian England, where he said this about the ancestor of the noble Marquess who is commonly referred to as "the great Lord Salisbury": It was one of Lord Salisbury's paradoxes that only uncontentious legislation should be brought before Parliament: if it were contentious, then public opinion was not ripe for it". That was a famous Conservative statesman who was not then Prime Minister but who became Prime Minister. I believe that Disraeli was Prime Minister when he uttered those words, or something very like them, in this House. Disraeli's administration of 1874 was, in the words of G. M. Young, not designed for legislation but for relief from legislation. That was the promise held out by Disraeli.

As I say, I turned to those words in G. M. Young's book rather wistfully, but I do not expect that much will come from repeating them in this House. However, I commend them to those who are preparing next year's and future years' legislative programme because it was not merely the volume of legislation that Lord Salisbury and Disraeli were talking about but the controversial nature of the legislation. They did not wish to bring in legislation for which the public was unprepared and so controversial that it would, so to speak, invite a future adminstration, not of their persuasion, to overturn it. Since the war we have, unfortunately, had to suffer the process of legislation, unpicking the legislation and then possibly relegislating. I believe that has done great damage to the fabric of our society.

The great Lord Salisbury was described by his own Prime Minister as a great master of jibes, flouts and jeers, and all too often jibes, flouts and jeers are hurled at parliamentary counsel. That has not happened today, though there were a few sideswipes. The late Lord Mancroft used frequently to talk sardonically about the "deathless prose" of parliamentary draftsmen. In the Renton Committee we collected what we called a chamber of horrors at the instance of the noble and learned Lord, Lord Simon of Glaisdale. This was not just for fun but to provide awful examples of what to avoid in the future.

I should like to say, as have so many others, that I have the greatest possible respect for parliamentary counsel and have no wish to criticise them individually. Indeed, I wish to pay them a compliment for occasionally enlivening the statute book as they did in the Wills Act 1968. This shows that they have a sense of humour which they rarely have a chance to demonstrate. The Act states: This section applies to the will of any person dying after the passing of this Act, whether executed before or after the passing of this Act". Contrary to what a number of noble Lords have said today, I found that it is much harder to fault a draftsman over his language in the statute book than it used to be when the noble Lord, Lord Renton, and I, with others, were considering the statute book, the process of drafting and the preparation of legislation. Not only that, but I believe that the structure of statutes has improved considerably and occasionally one even sees a purpose clause which we so strongly recommended; and that is gratefully received. Whether that is as a result of the recommendations of the Renton Committee, as perhaps the members of the committee like to think, or it would have come about anyway, as the draftsmen may like to claim, does not matter. I firmly believe that drafting is much better than it was and that draftsmen are to be congratulated on what they have achieved.

I do not have any criticisms of the draftsmen individually although I do collectively, and I criticise the system under which they have to work. However, before I turn to that, I advert to three matters on which I should like to question the Minister. On codes of practice or guidance, we had in this House a debate which the noble and learned Lord answered, and I believe that just after that the noble and learned Lord chaired a committee on codes of practice. I should like to ask him how that committee is progressing, when it will report and to whom, and whether the conclusions will be made known, possibly for discussion in this House.

I should also like him to consider passing to that committee this suggestion. I believe it would help greatly if the Government adopted the practice of explaining in the Explanatory Memorandum the exact legal effect of the trigger clause when a code of practice is embodied in a Bill. I believe that would improve the quality of the legislation and could save time in this House when the Bill comes before it. It would improve legislation because it would force the draftsmen to put in a brief paragraph clearly stating what the legal effect is. As past experience has demonstrated, that is not always easy to discover. Therefore, that would be accepted by the legislators who are examining the Bill and would not cause them to ask questions about the exact effect of the legislation when it comes before the relevant House.

I should like briefly to say something about recruiting. In the answer to a recent Question in this House it was distressing to hear that there are only 24 parliamentary counsel, including those who are seconded to the Law Commissions, whereas in 1975, when the Renton Committee reported, there were 23. That is a bare increase of one, which is totally insufficient when one considers the increase in the legislative programme.

Lord Renton

My Lords, excluding those seconded elsewhere.

Lord Henderson of Brompton

My Lords, that includes four seconded to the Law Commissions for consolidation. Is it the case that the complement of parliamentary counsel was increased to 30 in September, as the noble Lord, Lord Belstead, said was the aim?

Another minor but important point is the paragraph in the Renton Report on training young parliamentary draftsmen. I believe this is a matter of increasing concern to the professions. It is certainly of concern to the Bar, especially in the matter of post-entry training. I wonder whether it is sufficient for senior draftsmen to train recruits merely by working together in pairs, which I know they do. In the report we said that first parliamentary counsel had recently examined the possibility of assigning one senior draftsman, for part of his time, to give more instruction to recruits and hoped to try this as an experiment. Now that the increase in the complement of parliamentary draftsmen is to go up from 24 to 30, I wonder whether the first parliamentary counsel is considering assigning a senior draftsman to perform that duty.

I see that I have spoken for 12 minutes, but as one or two Peers have spoken for less than their ration perhaps I may speak for a few moments more.

I believe—as I am told—that there is not sufficient dialogue between the draftsman and the Minister between the moment the draftsman gets his instructions and the time he produces his first draft. Would it not be possible for the Minister and the draftsman to discuss the draft at this very early stage? That might produce a draft which is, so to speak, less set in the mould. Alternatively, if it has not received the complete approval of the Minister at that stage he could alter the drafting or suggest alterations. It should not be later, because once it is moulded it cannot be affected otherwise than by cracking open the Bill, and no Minister wants to allow that to happen. That is an important point.

I always remember Mr. Justice Cooke, who was a member of our committee. He said that once drafting instructions had been given, the draftsman was king. That is an important expression. I am sure that he is the king of the Bill team. But should he be king to the extent that he has, so to speak, mastery over not only the drafting of the Bill but its contents? I have no more time to say other than that I believe that scrutinising of drafting by the Legislation Committee should be undertaken in time for a Bill to be referred back for drafting purposes. Like the noble Earl, Lord Selkirk, and, I believe, the noble and learned Lord, Lord Simon, I favour the transference of ministerial responsibility for the parliamentary counsel from the Prime Minister to the Lord Chancellor.

7.21 p.m.

Lord Renton

My Lords, when the noble Lord, Lord Henderson of Brompton, was a member of our Committee on the Preparation of Legislation, he did valiant work. He reminded us from time to time of the revising function of your Lordships' House. That is a function of which we hear a good deal these days and of which we should not lose sight. The noble Lord, Lord Henderson, has made a number of constructive suggestions. I welcome them, but I shall dwell only on the purpose clause.

We are all grateful to my noble friend Lord Selkirk. He has done us a great service by enabling us to have this important debate. It is the first of its kind for five years. I am glad that my noble and learned friend the Lord Advocate is to reply. As has been mentioned, he owes his presence to Recommendation 92 of our report.

I wish that there had been some noticeable improvement in the quality of drafting over the past five years; but alas, as noble Lords have shown, we still suffer from excessive detail, causing complexity. Another tendency is for statutes to contain unnecessary amounts of purely administrative matter—provisions dealing with the way in which government departments and other bodies are organised and operated. We sometimes even go so far as to tell the courts what to do, even when they have for ages acted on sound principles.

The draftsmen, as has been said, cannot be entirely blamed for all that. They have to follow their instructions, which are given to them in the first place not by Ministers but by the officials in each Minister's department.

I wish to put forward five proposals which I hope your Lordships will find constructive. They would lead to improvements. I have given notice of these proposals to my noble and learned friend. They have all been mentioned already. That will therefore save me some time, although I want to elaborate on one or two of them.

The first proposal was mentioned by the noble Lord, Lord Henderson. I should like to renew the plea first put forward by the Law Commission in about 1969 and then by our Committee on the Preparation of Legislation for purpose clauses declaring Parliament's intention. We can either have a clause covering the whole Bill and proclaiming its general legislative purpose or we can have—I think this will often be better—a number of purpose clauses setting out Parliament's intentions with regard to each part of the Bill.

Purpose clauses, whichever way they are done, are a necessary aid to interpretation by the users of statutes and by the courts. That is so whenever a Bill contains detailed provisions, so that its provisions can be better understood. Sometimes a purpose clause would enable us to have less detail, but there is another and a strong reason for declaring Parliament's intentions. Five years ago, in reply to out last debate, my noble and learned friend Lord Hailsham from the Woolsack pointed out that 90 per cent. of the work of our appellate courts consists of statutory interpretation—trying to fathom what our legislation means. At the time my noble and learned friend said that there was an important and purposive element in the attempts of the courts to interpret statutes.

The noble and learned Lord, Lord Simon of Glaisdale, has referred to the evidence given by two eminent Scottish judges. Each of the top judges, from both sides of the Border, who gave evidence to our committee said, in effect, "Make clear the intention of Parliament, and we will faithfully follow it, but it must be made clear". So let us have purpose clauses governing the whole or every part of each Bill. It can be done. It occasionally has been done. Let us have it as a general rule of drafting.

Secondly, I join with the noble and learned Lord, Lord Simon of Glaisdale, in his most effective plea that wherever feasible we should have statements of principle, as recommended by our committee towards the end of chapter 10 of our report. That would lead to greater simplicity and clarity. It is not always feasible, but it would be so on many occasions. At present, it is scarcely ever attempted. The use of statements of principle should be encouraged.

The noble Lord, Lord Meston, in one of the many interesting speeches we have heard, said he hoped the rumour that the Government were going to have short Bills and a great deal of secondary legislation was not true. I hope it is not true, partly because we are a revising Chamber. It may help the noble Lord and my noble and learned friend on the Front Bench to he reminded that Recommendation 30 of the committee's report said: General principles should be set out in the body of a statute, detailed provisions of a permanent kind in Schedules, and details liable to frequent modification in statutory instruments". I hope that puts the whole issue into proper perspective.

My third proposal is that the legislation committee of the Cabinet should resume its function as a committee which scrutinises Bills before they see the light of day. It was done effectively, as some noble Lords remember. It was effective when the Lord Chancellor was its chairman. That was the position for years. I served on it as what was called a permanent member of the committee when I was Under-Secretary at the Home Office. The late Lord Kilmuir was in the chair. The Attorney-General, Sir Reginald Manningham-Buller, as he then was, the father of our noble friend Lord Dilhorne, did valiant work. He would sit up late the night before, go through the Bills and draw attention to obscure matters. At that time, whichever party was in power, the Lord Chancellor and the law officers "had a go" at the legislation before it saw the light of day. However, I understand that of recent years the Leader of another place has been chairman—a layman always—and it has become a mere business committee with results that are noticeable and sad. That is my third suggestion.

My fourth suggestion has already been mentioned by my noble friend Lord Selkirk and the noble and learned Lord, Lord Simon of Glaisdale. It is that the Lord Chancellor's Statute Law Committee should at last become more useful. That could be done by accepting Recommendations 108 and 109 of our report. Recommendation 108 merely says: The Lord Chancellor should arrange for the Statute Law Committee to keep the structure and language of the statutes … under continuous review". Recommendation 109 states that its report should be published and laid before Parliament not less often than every three years.

My fifth and last suggestion is in support of my noble friend Lord Selkirk and relates to ministerial responsibility. The Prime Minister is responsible as Minister for the Civil Service for the Parliamentary Counsel Office. The Lord Advocate is responsible in Scotland. But the Prime Minister is responsible for administration only. She has no overall responsibility for drafting practice. Neither has any other Minister on this side of the Border. Each Minister theoretically and constitutionally is responsible for his own Bill, but in practice they nearly always duck responsibility for drafting when challenged. When they are challenged on a piece of dubious drafting they answer that the draftsman says it is all right, and that is the end of the matter. Except to the extent that the draftsmen have to follow the instructions given to them by officials, the draftsmen are therefore de facto autonomous, a law unto themselves. They are splendid people but self-governing de facto and the results have been mentioned by noble Lords in almost every speech we have heard in this debate.

It is essential that they should be answerable to a Minister for the drafting policies and practices which they pursue. The Prime Minister cannot conceivably be asked to do this work even though she was a very skilful barrister when in practice. Clearly the Lord Chancellor should be the Minister responsible.

My noble and learned friend the Lord Advocate has been alerted to what is still after these many years widespread concern about the quality of our legislation. He has had various constructive proposals put before him to improve the matter. I hope that we shall have some very positive replies from him.

7.35 p.m.

Lord Airedale

My Lords, if any noble Lord present was hoping at this moment to hear from the noble and learned Lord, Lord Denning, I sympathise with him if he feels constrained to remain in his place to listen to me. It is also rather intimidating to follow the noble Lord, Lord Renton, whose name is so indelibly associated with the subject we are discussing.

I have the honour to be a member of the Joint Committee on Consolidation Bills. I can introduce a cheerful note into the debate by reporting that there have been tremendous strides in consolidation in recent years—cutting out the dead wood in the statutes and keeping only that which remains valid. There have been numerous small consolidations while major topics that have been the subject of consolidation have included adoption, child care, companies, customs and excise, employment protection, highways, housing, magistrates' courts, the National Health Service and the Rent Acts. In addition, there has been a consolidated Interpretation Act incorporating improvements recommended by the Law Commissions.

When one turns to subordinate legislation it is not such a happy picture. Perhaps I may give two examples. The London Cab Order of 1934 is still in force. But let the reader beware, my Lords! It has been amended 16 times. To give an example which affects more people personally, the teachers' superannuation regulations of 1976 have since been amended 12 times. I know that every man is supposed to know the law and I do not suppose that one can administer justice on any other basis. But there is a corresponding duty upon the state to make the law accessible to the subject. I do not believe that the state is being fair to the citizen if it expects him to know the current law on teachers' superannuation.

We sometimes hear the question—and it is so easy to ask—"Why don't the statutes simply deal with general principles and leave the details to be filled in either by subordinate legislation or by the decisions of the courts?" My noble friend Lord Meston dealt with subordinate legislation and the noble Lord, Lord Renton, made interesting observations about that. I therefore need not go into that subject in any detail. I would ask only whether, if the volumes of statutory instruments are going to swell at the same rate as the volumes of statutes become slimmer, will anything be achieved? If the subject has to look for the law in two places instead of one, will he be pleased about that?

It is said that the courts are there to resolve those questions which arise out of legislation but with which Parliament did not deal. The difficulty is that one has to find a citizen who is prepared to put down his money and to bring a case to decide a question which most people think Parliament should have decided anyway—one in which a great many other people are interested. The noble Lord, Lord Renton, speaking about the interpretation of legislation, brought to my mind the position that the unfortunate judge is in. He will be saying to himself, "I am not allowed to decide this case as I would if I had a completely free hand. I have to try to decide how Parliament would have decided this question if Parliament had given the matter its attention. I am not allowed to look at Hansard to try to find out what was in the mind of Parliament when it was passing this legislation and I find myself in a rather unenviable position".

I am afraid that the only answer is that in a sophisticated society we must put up with statutes which deal with all the matters that arise under them so far as Parliament is able to foresee the consequences. It is Parliament's job to do it and it is not for the citizen to bring a case to decide a question which Parliament omitted to decide.

Finally, I refer to one detailed matter. I should like to hark back to the Report stage of the Immigration (Carriers' Liability) Bill, which we discussed on Report on the day before we rose in the last Parliament. This Act, as it now is, has a penalty clause which states that a person who offends shall, be liable to pay the Secretary of State on demand the sum of £1,000". It does not use the conventional words "a sum not exceeding £1,000". So I put down an amendment at Report stage to try to elucidate the matter, to find out whether this was a fixed penalty or whether it was a maximum penalty. It emerged during the debate that it was indeed a maximum penalty.

The noble Earl, Lord Caithness, did his best to defend the drafting of his Bill. Inter alia the noble Earl said this: By making the charge infinitely variable up to £1,000, it would be impossible for the carrier to know his liability. It would require infinitely delicate judgments to he made".—[0fficial Report, 12/5/87; c. 549.] Is that not exactly what happens every day when anybody is accused of a criminal offence which carries a maximum penalty?

As I said on Report, it will be a sorry day if we are to use the statutes to kid people into supposing that if they offend they are likely to suffer a worse penalty than in fact is likely to be the case. The statutes, whatever else they do, must never be allowed in any way to seek to mislead the people.

7.43 p.m.

Lord Elwyn-Jones

My Lords, I should like to join in the gratitude which has been expressed to the noble Earl, Lord Selkirk, for introducing this important and extremely valuable debate on the preparation and drafting of parliamentary legislation. If I may say so, I wish it had happened before I became Lord Chancellor: I might have made a better job of it. I bear with such fortitude as I can the reproach which has been addressed to me by the noble and learned Lord, Lord Simon, for my being tepid about the Renton Report. But I am not unique in that—not that that is a justification but it is at least to be borne in mind as a mitigation.

We are discussing a matter of very great importance. A large number of valuable suggestions have emerged. I cannot say that I envy the noble and learned Lord, Lord Cameron of Lochbroom, the pleasure of answering all the points that have been raised, but they are matters of importance and substance. There is no doubt, I am afraid, that the present state both of preparation and of legislation itself is providing less than satisfaction to the public at large, to business and to the ordinary citizen, who is finding it difficult to understand what the law is all about and who has doubts about its accessibility.

The dismaying features of the present state of play in the legislative field include, first, the great quantity of legislation that is flowing through. If I may say so without seeking to be party political, some of the legislation is of a highly controversial character. We have apparently reached the end of consensus and we move into more troublesome parliamentary times. But there it is. No doubt the noble and learned Lord will say in reply that that happened when a Labour government came in after a Conservative government. That may be so: I know not. But there is a flood of legislation that has come through and is coming through which, by its controversial quality—if that is the right word to use about it—has added to the problems that Parliament has had to face in coping with it.

Additionally there is the great length and complexity of the Bills that are coming forward. That little Bill the Copyright Bill has 277 clauses. The Criminal Justice Bill is a modest little thing compared with that, only 139 clauses. A massive burden is being placed upon the House, where we are at present coping as best we can with the Criminal Justice Bill and shall shortly be faced with the Copyright Bill. One of the troubles that we meet in the present arrangements about legislation is that these Bills come to the House for Second Reading with, broadly speaking, no preliminary indication to the Members as to their content apart from manifesto commitment, the odd leak, the odd newspaper report and sometimes White Papers, from which very frequently the Bills which follow depart in substance and significance. We are not given much chance to cope with the situation as it presents itself to us.

I was interested to read a valuable book by my old colleague Sir William Dale, who was in my department in the old days in the Attorney-General's Office. In it he urges the importance of interposing in the legislative process a stage between drafting a Bill and its enactment. This is a matter of great significance. I appreciate that it would involve major changes and that there will not be any great enthusiasm on the part of government to engage in major constitutional changes, but it is worthy of very serious thought. Sir William Dale's hook, Legislation Drafting: A New Approach, makes this point very strongly: A legislative body is wise to arm itself with the means of criticising and revising the draft Bills laid before it, and this the continental system of parliamentary working provides. The report of such a Committee reflecting the thorough discussion with ministers and civil servants as required, and setting out amendments proposed, with a table showing these, the text of the existing law and the text of the Bill, is a helpful guide to the House when the Bill comes to be debated". If we had that arrangement we should not be so naked when Bills came before us as I fear we are now with our present arrangements.

Like the noble Lord, Lord Meston, whose speech I greatly enjoyed, I commend the value of the Bills that come from the Law Commission, which is able to apply its scholarly and able mind under less pressure than we face in the House. It presents us not only with measures of law reform but with Bills to give effect to them. One of the most agreeable parts of my political life was spent working with the noble and learned Lord, Lord Gardiner, in that exciting period in the process of law reform when the Law Commission was created.

The concept which I have just mentioned and which is stressed in Sir William's book is not wholly alien to this country. The Joint Committee on Statutory Instruments works on Continental lines although as a rule the subordinate legislation it examines is already made. There is there a parallel arrangement, and I understand that an experiment on those lines was made in respect of one or two Bills. I do not know whether the noble Lord, Lord Henderson of Brompton, may have some recollection of this. I cannot take the matter further than that. A process which would give Parliament and the House of Lords a greater opportunity of being forewarned, forearmed and informed is something which we presently lack and which would be valuable.

As to drafting, I too commend the devotion and work of the parliamentary draftsmen, in spite of the frequency of adverse and often ill-informed attacks on their work. Perhaps the most spectacular attack was made by Lord Justice Harman, and for the pleasure of reading it out, I shall quote it again. It will be familiar ground to your Lordships. He was construing a statutory instrument in the Court of Appeal, and he said: To reach a conclusion on this matter involved the court in wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way on each side. I regarded it at one time, I must confess, as a Slough of Despond through which the court would never drag its feet, but I have, by leaping from tussock to tussock as best I might, eventually, pale and exhausted, reached the other side where I find myself, I am glad to say, at the same point as that arrived at with more agility by Lord Denning, the Master of the Rolls".

Lord Renton

My Lords, it is very kind of the noble and learned Lord to give way. To be fair to parliamentary counsel, they do not draft statutory instruments. They are drafted by the departmental lawyers.

Lord Elwyn-Jones

My Lords, if I may say so, I was going to make that correction myself. It is quite true. I should also add that I was once the victim of the punctilio for which Lord Justice Harman was famous. I was appearing before the Court of Appeal for a watchmaker who had suffered an injury which, as I put it to the court, affected the dexterity of his left hand. The Lord Justice said "What? The dexterity of his left hand?" I said, "My Lords, if it would be more convenient for me hereafter to refer to it as the sinisterity of his left hand, I should be very happy to do so". He was with me from that point on, incidentally. However, enough of this anecdotage.

The criticisms are occasionally easy to make and we have been given some recent examples. The fault lies in part in the system. I entirely agree with the suggestion that the responsibility for the draftsmen should rest with the Lord Chancellor's Office. I agree also that the draftsmen's numbers should be increased, because we are putting enormous burdens upon them.

The difficulties of draftsmen these days are perhaps greater than they used to be, not only because of the quantum of legislation—there may have been as much in the past, I know not—but because of the greater complexity of the matters with which they now have to deal. Much legislation—tax laws, company laws and so on—deals with complex formulae. Such legislation seeks to balance conflicting financial, economic and social interests and to make exceptions to exceptions to exceptions. It is a task of appalling complexity.

Sometimes the policy which the draftsmen have to transmit in a Bill is not properly thought out and is almost incapable of being carried out in a way which is intelligible to the average citizen. In the case of Merker Island Shipping v. Laughton in which the Court of Appeal had to construe three Acts of Parliament dealing with industrial relations, including the 1980 Act, the Master of the Rolls, Sir John Donaldson, said in his judgment: The Judges of this Court are all skilled lawyers of very considerable experience, yet it has taken us hours to ascertain what is and what is not offside, even with the assistance of highly experienced counsel. This cannot be right". He added: I don't criticise the draftsman. His instructions may well have left him no option. When formulating policies, Ministers of whatever political persuasion should at all times be asking themselves and asking parliamentary counsel 'Is this concept too refined to be capable of expression in basic English? If so, is there some way in which we can modify the policy so that it can be properly expressed'". I am bound to say that, if that advice was followed more often, we in Parliament would perhaps be less troubled. It is rather interesting that when the matter went to the House of Lords the noble and learned Lord, Lord Diplock, echoed everything that had been said by the Master of the Rolls.

In these complex matters the draftsman is also subject to the stern discipline of the need for precision. As the noble Lord, Lord Renton, will recollect, the Renton Report stressed that the draftsman must never be forced to sacrifice certainty for simplicity, because the result may well be to frustrate the legislative intention. The draftsman is in this difficulty. While he is criticised for making laws too complicated he may also be criticised when simple provisions are found to be imprecise. It is an uneasy road.

There is also the time factor, which has already been stressed during the debate. Much legislation is carried out in far too great a hurry, and that is happening now. For instance, we are having to deal with the Criminal Justice Bill at an intolerable speed, with an insufficient gap between one stage and another. This pressure on the draftsman is not new. I remember when I was Attorney-General receiving a letter from parliamentary counsel which said: "I am sorry that this letter is so long. I did not have enough time to write a shorter one". As a matter of interest, I have since discovered that that was first said by Pascal, but I do not want to take anything from the quality of the draftsman who sent me that true letter. The draftsmen have to work under great pressure and sometimes have to deliver the goods before they have finalised the Bill themselves.

There is one final problem—I am taking advantage of my predecessors' economical use of time, with the permission of the House—and that is in the legislative field. It has been identified by the noble and learned Lord, Lord Wilberforce, with his immense wisdom and experience. He said in a debate in the House that legislation, is not only much too large in quantity,"— this was way back in 1966, as a matter of interest— but much too detailed in substance". He referred in his speech on that occasion to, the preoccupation with every minute case which has to be regulated … as legislators, we have a responsibility in this matter, which one can perhaps define by saying that we should endeavour, so far as we can, to resist this process of detailed and excessive regimentation and try to press for a wider mesh in our legislation."—[Official Report, 1611/1966: col. 1295.] The noble and learned Lord, Lord Simon of Glaisdale, has spoken on similar lines.

I end with the words in this context of Lord Halsbury, who said: The more words there are, the more words are there about which doubts may be entertained. Looking at the clock and the passage of time, I had better take the hint of those wise words myself.

8.2 p.m.

The Lord Advocate (Lord Cameron of Lochbroom)

My Lords, the House is indebted to my noble friend Lord Selkirk for initiating this debate. I knew him many years ago when I was a child and he was about to embark on the legal career which led him far from the courts of Edinburgh. At that time he gave me sweets, and tonight perhaps I might say that he has rather given me savouries.

As the Minister responsible for the Scottish parliamentary draftsmen the subject particularly interests me, although I shall of course in this debate be looking at the subject in a United Kingdom context. Perhaps at the outset I should acknowledge myself as an heir to Recommendation 92 of the report of the committee chaired by my noble friend Lord Renton. We must, as we were at the time of its publication, remain indebted to him for his committee's work.

The Motion before the House refers separately to the preparation and to the drafting of parliamentary legislation, and although they run into each other I should like to deal with each subject in turn. The most conspicuous part played in the preparation of a Bill is that of the parliamentary draftsman since it is his text which is placed before Parliament.

Let me say here and now that I welcome the tributes that have been paid today to the parliamentary draftsman. We should remember that his work constitutes in effect the last lap in what might be seen as a relay race. He cannot begin until he receives his instructions from the legal adviser to the department which is promoting the Bill, the legal adviser cannot prepare the instructions until the department concerned has worked out in detail how the policy is to be given effect, and for policy of course they have to wait for the decision of Ministers.

I entirely endorse what was said by the noble Lord, Lord Diamond, that the responsibility for the drafting of any Bill lies with the Minister whose Bill it is, and nowhere else. That being so I have to make a distinction—because I think it has sometimes been missed in some of the speeches this evening—between what is pure drafting and what is in fact policy, because for that too the Minister takes responsibility.

In saying that I am conscious of some of the criticisms that the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Dilhorne have made. They seemed to me to go rather more to policy than to the drafting of the Bill itself. Equally let me say too to the noble Lord, Lord Airedale. that the point he was making was again a policy point and not one of drafting.

I would say to the noble Lady, Lady Saltoun, that obviously Ministers learn from their errors. It must be a question of determining how best to put matters before the House. I can assure her that Ministers are conscious of the points at which they may have failed as being valuable experience for the future.

To both the noble Lord, Lord Henderson, and my noble friend Lord Renton in relation to the business of a legislation committee I have to say that I do not see it likely that there will be any change in the use which that committee makes in the regulation of business. Policy scrutiny is a matter to be determined elsewhere. I take the point about the drafting, but I suggest that at the end of the day it comes back to the Minister whose Bill it is to take full responsibility for its drafting.

Lord Simon of Glaisdale

My Lords, surely the noble and learned Lord is not gainsaying that the job of the legislation committee is precisely to look at drafting after policy has been determined?

Lord Cameron of Lochbroom

No, my Lords, I am not suggesting that, but what I am saying is that it can go no further than the drafting and not to policy. Certainly, as I understood it, when it was under the chairmanship of the Lord Chancellor it went beyond drafting to policy. But notwithstanding what I have said, I would be happy to draw what has been said today to the attention of my noble friend the Leader of the House, who would be particularly concerned with it.

I turn to the three stages that I have referred to. Each of these stages is of equal importance in the process and, as was recognised in the Renton report, the stages before drafting begins are of crucial importance to the ease or difficulty of the draftsman's task. The comparison with a race is apt, because the demands of the parliamentary timetable and our system of sessional cycles for legislation impose strict constraints of time.

1 think it is well known that governments have in the past had to drop Bills in order to introduce, or facilitate the progress of, other Bills. I would say to the noble Lord, Lord Henderson, that the concept of non-contentious legislation fell apart in the early years of this century, and perhaps since then legislation has continued to be contentious in varying degrees. I cannot suggest that we shall ever get back to the halcyon days of the Victorian era in that regard.

The Government are conscious of pressures, but the matter seemed to me to be answered by what the noble Lord, Lord Diamond, said in relation to government business. I would not propose tonight—I do not think it appropriate—to discuss the question of how this House organises its business. That was discussed in a debate last week and does not seem to me to fall within today's topic.

I take the point about rushed legislation, which the noble Lord, Lord Meston, raised, and indeed the future legislation committee must be fully aware of this. Indeed, in recent years work has started early on a limited number of Bills for the Session after next. This is highly desirable for Bills of particular complexity and where that course has been adopted the drafting has benefited. An example is the Copyright, Designs and Patents Bill recently introduced into your Lordships' House. The drafting of that Bill has been praised by representatives of some of the outside interests consulted in the course of its preparation and will I trust also commend itself to your Lordships. But there are both political and practical difficulties in adopting this expedient more generally. The practical difficulty is that the people required to work on a Bill given an advance place in this way are often the same as those fully engaged on work for the current Session. The political difficulty needs no elaboration.

It is small wonder that with the demand on time and labour to prepare Bills for the next Session and some Bills for the Session after next, the size of the task and the constraints of time occasionally result in the introduction of Bills that need amendment on matters which in an ideal world would have been dealt with before introduction. That is not to say that a multitude of government amendments while a Bill is going through Parliament is necessarily a sign of lack of preparation. In many, and perhaps most cases, they are not drafting amendments but reflect the Government's response to points of substance made by Members and by those outside Parliament who are affected by, or interested in, the subject.

Indeed, I go along entirely with what was said by the noble Lord, Lord Diamond, about the importance of listening while legislation is going through Parliament and taking advantage of the passage of the Bill to incorporate improvements. Therefore, an amendment is not in itself an indication of poor preparation. I should like to say, from my own personal experience, how valuable consultation has been during the passage of a Bill, as well as before it, in preparing legislation for Parliament.

In the instance of the Financial Services Bill, in which I played a little part, that was a case where there was a volume of amendments in the later stages, and a substantial proportion of those were the result of consultation with interested parties that had occurred during the course of the passage of the Bill; and the Bill was much the better for it. The same could indeed be said of the Insolvency Bill because of the debates that took place in this House because parties were alerted as to what was going through. Again, it was possible to deal with those matters by way of amendment.

The noble Lord, Lord Henderson, raised the matter of the number of parliamentary draftsmen, as did the noble Lady, Lady Saltoun. My noble friend Lord Renton also referred to this in passing. There has been an improvement recently. The complement of the Parliamentary Counsel Office from last September has been 12 senior and 14 junior counsel. Parliamentary draftsmen work in teams; that is to say, a senior and a junior work together.

The noble Lord, Lord Henderson, raised the question of training. There is a form of introductory talks on certain subjects which are given to those entering the office by first parliamentary counsel. However, the general view is that training juniors really has to be learning on the job—and I think noble Lords will fully understand why that is so—since the majority of junior counsel now in post have been recruited comparatively recently, six of them as recently a last September.

The main burden of the work, of course, falls on the seniors, and some idea of that burden can be gathered from a few figures. In 1976, 1,400 pages of new legislation were drafted by 11 seniors, with the assistance of eight juniors. In 1986, 2,174 pages were drafted by the same number of seniors but with the assistance of nine juniors. In addition, there are at present three seniors and one junior seconded to the Law Commission to assist in the work of law reform consolidation. It is hoped next year to increase the complement to three seniors and three juniors, as agreed with the Lord Chancellor, who is responsible for the Commission.

I should like to reply to a point made by the noble Lord, Lord Meston, about the use of the Law Commission in, as it were, overseeing or supervising Bills going through Parliament. First of all, there is no statutory duty for it to do so. Secondly, I suspect it is fully engaged with what it is doing at the present time and would not therefore welcome a further burden of that kind.

As regards Scotland, I have nine Scottish parliamentary draftsmen, which is an increase of one over the past 10 years. They are responsible to me and act as my legal secretaries. In addition, there are one full-time and two part-time draftsmen who have been seconded to the Scottish Law Commission. It is sometimes suggested that the burden on parliamentary draftsmen could be reduced and that even more legislation could be drafted if outside assistance was obtained. The Renton Committee examined this possibility in detail in 1975. At that time it firmly concluded that outside counsel do not provide a significant alternative resource for drafting legislation, although retired parliamentary counsel can help with consolidation. Indeed, a retired counsel has prepared the enormous consolidation of the Income and Corporation Tax Acts.

Reference has been made, obliquely, to the use of computer technology. In this connection, I am able to say, in response to a point which my noble friend Lord Balfour raised, that drafting offices are now able to produce successive drafts of a Bill in a format which enables it to be accepted by printers and rapidly produced, by modern technology, as a printed Bill. Work is also proceeding to establish statutory databases to facilitate the rapid updating of statutes in force and to enable a retrieval system to be established which would assist both the draftsmen and the user of statutes. It is recognised that here again the work of the draftsman could be eased and the time taken to prepare drafting could be reduced.

I now turn to the question of drafting. The Renton Committee recognised that many Acts were well drafted and gave no grounds for criticism. At the same time, however, I accept—perhaps I have to accept, in view of the comments made in this House this evening—that there are from time to time particular provisions that cause difficulty and are capable of improvement. A draftsman is always ready to have another go if Ministers are willing to move the necessary amendments. In the last session there were several occasions when this was done with resulting benefit to the drafting of the Bills in question.

The Government have always accepted that the drafting recommendations in the Renton Report are a valuable summary of the best drafting practice, and those recommendations are certainly taken into account when government legislation is being prepared. I count among them recommendation 30, in relation to the use to be made of subordinate legislation. I must, however, caution that they cannot be regarded as rules of universal application. The extent to which any particular device can be adopted depends on the nature of the particular Bill and the draftsman's judgment of how best he can deal with his instructions.

In that sense I think I probably have to say it is unlikely that a test case of the kind the noble and learned Lord, Lord Simon of Glaisdale, suggested can be launched, although I have to say that in the preparation of other recent legislation—the noble Lord, Lord Henderson, referred to this—it is quite clear that various aspects and recommendations of the Renton Committee have been taken into account. I was therefore very happy to hear him say that there had been an improvement. I accept that my noble friend Lord Renton was perhaps less than enthusiastic on this, but I can recollect that when dealing with the Criminal Justice Bill for Scotland last year we made use of the formula which the Renton Committee had asked for—I remember my noble friend commented on that—which was introduced by way of amendment.

On delegated legislation, I have to say, as has been pointed out already—I think the noble Lord, Lord Meston, referred to this and, in part, so did my noble friend Lord Dilhorne—that it is not a matter for drafting by parliamentary counsel. However, I accept that one can always look for improvement there and I will certainly see that these matters are brought to the attention of those who would be interested in this subject. As regards the substance of the Bill, the draftsman is not a free agent. It is sometimes thought that when Ministers or officials come to a parliamentary counsel with a simple straightforward idea it is then elaborated into a text of practically impenetrable complexity. It is no part of parliamentary counsel's job to make simple things complex. On the contary, what he strives to do is to present complicated matter in as simple a way as he can.

However, as the Renton Committee acknowledged, there is a limit to what can be done in that direction. The draftsman has clients whose demands he is bound to fulfil. Those who ask for simpler legislation should address themselves to the draftsman's clients, and I am conscious that your Lordships have done that this evening. Nevertheless, a responsibility rests on Members of both Houses whose demands are not always directed to greater simplicity. I do not wish to enter today into too much detail about the issues as to whether legislation should be drafted in more general terms except to say, for instance, that the kind of thing that has been suggested in the way of purpose clauses is to be found in Clauses 28 and 163 of the Copyright, Designs and Patents Bill, and the view is taken that that can be usefully used where the particular subject is apt for it.

The noble Lord, Lord Renton, also made reference to the statements of principle. I think that if noble Lords were to consider the legislation of the last Session they would recognise that few of the measures could have achieved their objective by statements of principle, even where the subject matter of a Bill, or part of a Bill, might lend itself to that. I question whether Parliament would be prepared to leave the detailed working out of principle to the courts. The noble Lord, Lord Airedale, made that very point. Would not the citizen expect to find the answer to his case dealt with in the Bill rather than have to wait for the judgment of the court in a case which he may never be able to raise?

For those reasons we are at present going as far as we can in order to adopt such solutions. I am reminded of what was once said on this matter by a parliamentary draftsman. He said: Drafting complications are but a reflection of the complexity of modern society and the difficulty of saying anything simple about anything". In reply to the noble and learned Lord opposite with regard to the giving of explanations to complex Bills, use is made of the White Paper to achieve exactly that. A White Paper has been published on the Merchant Shipping Bill which was recently introduced into your Lordships' House. That is an excellent way for the basic idea to be formulated. And, as the noble and learned Lord knows well, it has already been done. We have taken steps to deal with that point.

Two matters which complicate the task of drafting legislation are perhaps not generally appreciated. The first is the need to prepare a text which simultaneously has to serve two different purposes. First, it has to serve as a Bill indicating to Members of both Houses what changes in the laws it is intended to bring about and, secondly, it has to do duty, when enacted, as a statute telling the public, lawyers and judges what the law then is. The Renton Committee recognised this difficulty and recommended that priority should be given to the second objective. That recommendation has now been generally adopted. Its most obvious form is the almost universal use of textual amendment when altering previous legislation.

My noble friend Lord Balfour raised the issue of statutes in force. I appreciate the force of what he said. I am afraid that I can give him cold comfort in the suggestion that we shall get any further forward in bringing statutes in force up to date as quickly as he would wish. However, we take the point that he has made. I should also like to respond to the points made by my noble friend Lord Selkirk as regards Notes on Clauses. That is a matter we wish to look at again, although in the past we have made the notes available where possible to those interested in a particular Bill. I should also like to respond to the point raised by the noble Lord, Lord Henderson, with regard to the explanation in the Explanatory Memorandum for the purpose of a trigger clause. I heard what the noble Lord said about codes of practice. There is no committee in existence but perhaps I may write to him on the current state of play.

The second difficulty is that the substantive content of a Bill tends to develop both in the stages of preparation before introduction and as it passes through Parliament. I referred earlier to the successive stages of what may be likened to a relay race. In practice, these stages tend to overlap with alterations of policy and the emergence of new points as drafting proceeds. An experienced draftsman has told me that he regards purely as a matter of drafting the first draft of a Bill as often being the best because it is constructed to give effect to what has been presented to him at that stage as a complete picture. Any elegance of language or structure that the first draft may have had easily becomes distorted by the introduction of qualifications and new material. Therefore, it is hardly surprising that at the end of the day it is the finished product that is the subject of some criticism of the courts. But that is the product of this legislature.

The claim is often made that Acts should be drafted to be intelligible to the man in the street or, as it is sometimes suggested, put in "plain English". I think that noble Lords will recognize—and they have said so tonight—that a good deal of our legislation deals with subjects that have become so complex that a considerable effort is needed to understand them and that there is little that language can do to alleviate the difficulty. My noble friend Lord Balfour may be interested to know that earlier this year the first parliamentary counsel and other members of his office had a very friendly meeting with representatives of the Campaign for Plain English.

Parliamentary counsel offered their visitors a Bill and a particularly long sentence out of another Bill with an invitation to improve or shorten them. It is, I think, fair to say that these exchanges led to a recognition both that some legislation, at least, was in fact in pretty plain English already and that there were considerations affecting a legislative text that differed from other forms of writing. It is more important that a statutory provision should be right in the sense of achieving the desired object than that it should be attractive judged by normal standards of good writing.

We are prepared to look outside. The noble and learned Lord opposite made reference to Sir William Dale, and reference was also made to the conference of the French and British draftsmen. There are also occasions when draftsmen meet otherwise; for instance at the Commonwealth Law Conference where there are useful meetings for comparison of drafting methods. I assure the House that minds are not closed in any way and there is always a useful exchange between my draftsmen and parliamentary counsel. That is not to say that there is not good drafting and bad drafting. Perhaps no one is better aware of that than the professional draftsman himself. But any noble Lord who has tried to draft an amendment will recognise that correct and accurate drafting is not as easy as it looks.

My noble friend Lord Renton raised two points with regard to his Recommendations 108 and 109. My noble friend will recollect that after careful consideration the government of the day, of which I believe the noble and learned Lord opposite was a member, were not satisfied that the Statute Law Committee was an appropriate body to discharge the function proposed for it, or that the proposal to keep the statute book under continuous review was likely to lead to any worthwhile improvement in the drafting of legislation. At present, that remains the view of this Government, but I am anxious that the views which the noble Lord has expressed today should be drawn to the attention of my noble and learned friend the Lord Chancellor.

As regards the movement of the department from my right honourable friend the Prime Minister to my noble and learned friend the Lord Chancellor, I think that I must be cautious, notwithstanding the blandishments of the noble and learned Lord opposite, in supporting that suggestion.

I should like to put this question: what happens when the Lord Chancellor is sitting as chairman of a committee which decides that legislation before it, for which his department has been responsible, has been badly drafted? I do not suggest that the noble and learned Lord the Lord Chancellor in his judicial capacity should ever be placed in the position of criticising his ministerial responsibilities. Nevertheless, I shall certainly draw that point to the attention of my noble and learned friend.

No Member of Parliament can rest with an easy conscience upon the proposition that the preparation and drafting of legislation has reached a perfect pitch. My noble friend the Leader of the House, when responding to the recent debate on the report by the group on the working of this House, pointed to the pitfalls which attend instant legislation. He also made reference to timing and I apologise for going over the time allocated. However, this is an important subject and as there is a little time left I hope that noble Lords will hear me out.

It can be argued that, like the best dishes, legislation should be composed of good ingredients, be well prepared and simply served. Unfortunately, just as the dish when presented may suffer from the knife of the diner whose taste may differ from that of the chef, so too a Bill as presented can suffer parliamentary scrutiny. But I think that we should still strive to attain both of the qualities to which the Psalmist referred when he said: But the statutes of the Lord are right and rejoice the heart". I should like to thank my noble friend for having introduced this useful debate. I have taken note of all that has been said. I am sure too that the debate will be noted in other quarters.

Lord Simon of Glaisdale

My Lords, the noble and learned Lord referred in passing to secondary legislation. Will he be kind enough to deal explicitly with the important point made by the noble Lords, Lord Meston and Lord Renton; namely, that we may have to look forward to secondary unamendable legislation taking the place of primary amendable legislation?

Lord Cameron of Lochbroom

My Lords, I am grateful to the noble and learned Lord. I should have dealt with that point but I thought I had done so in dealing with Recommendation No. 30. I am wholly unaware that any such suggestion has been made. I say that in the sense that I see legislation only as it is being presented. Certainly, I know of no plans of the kind that are suggested.

The Earl of Selkirk

My Lords, at this late hour I do not propose to say very much more. The House has heard a brilliant defence of the existing situation. I am extremely grateful to the noble and learned Lord for what he has done and hope that he means what he says. Some of the observations made this evening are worth further consideration.

There are two matters about which I feel very strongly. One concerns the absence of any stated purpose in a Bill. As an illustration, let me cite the opening clause of the Merchant Shipping Bill: In this Part— (a) sections 2 and 3 have effect in place of section 1 of the Merchant Shipping Act 1894". Such is the opening of that Bill. I think that some statement of purpose is desirable. Secondly, it seems to me to be absolutely essential to consult the noble and learned Lord the Lord Chancellor. I shall not speak any further. I beg leave to withdraw my Motion for Papers.

Motion for Papers, by leave, withdrawn.