§ 8.12 p.m.
§ Lord Simon of Glaisdale rose to ask Her Majesty's Government whether they will reduce the quantity and improve the quality of legislation.
§ The noble and learned Lord said: My Lords, I wish to thank noble Lords who are to speak in the debate and also to thank the noble and learned Lord the Lord Advocate for being prepared to reply to the Question. I shall venture to ask him specific questions which I hope are within the scope of his brief.
§ It is generally agreed that we have too much legislation and that it is of an indifferent quality. Widespread complaints led to the setting up of that most important committee, the Renton Committee. I do not need to apologise for returning to the matter because one or two recent issues have provided extra illumination on those complaints.
First, I wish to deal with the excessive quantity. At paragraph 1.10 the Renton Report states:
We have particularly in mind the tendency of all Governments to rush too much weighty legislation through Parliament in too short a time".
Does the noble and learned Lord accept that to be the case?
§ In fact, nothing has been done to stop the flow of legislation. The Renton Report was submitted to Parliament in 1975 and in that year the public and general Acts took three volumes. In 1985, a decade later, they amounted to five volumes. In a Written Question the noble Lord, Lord Rippon, received an Answer which broke down those figures but I shall leave him to deal with the matter if he so wishes. It is sufficient to say that in 1975 the Acts amounted to three volumes, and that a decade later there were two more volumes. That shows that no regard had been paid to what was said by the Renton Committee.
§ In 1976 the statutory instruments amounted to seven volumes. By 1986 there were 10 volumes. Therefore, the increase in the statute book of public and general Acts was accompanied by a massive increase in secondary legislation.
§ One must ask the question: why did that happen? In order to provide a remedy, it is necessary to try to identify the causes of that excessive legislation. I believe that we are grossly over-governed but I shall leave that subject to other noble Lords who have a particular interest. However, I emphasise that over-governing is a particular feature of central government. On the whole we have seen a weakening of local governments at various levels and an arrogation of their powers to central government.
§ Specifically in the sphere of legislation I identify the problem in two words; "ambition" and "officiousness". The ambition is mainly that of Ministers. They have the idea that they can advance their standing by piloting through Parliament a complicated piece of legislation. I believe that to be a gross mistake. The late Mr. Macleod, a most able Minister of Health, prided himself in initiating no legislation. He was a highly successful Minister.383
§ Having identified the ambition of Ministers in contributing to the problem, one can ask the question: how can that be remedied? Quite clearly, the remedy lies in the machinery of government. There exists a Cabinet committee on future legislation. I imagine that the noble Lord the Leader of the House is a member and I am grateful to him for attending in the House. I do not believe that the noble and learned Lord the Lord Advocate is a member; during my time he was not. However, can he say what steps the committee on future legislation takes to ensure that a massive flow of legislation does not take place?
§ I wish to remind noble Lords of what was said by the noble Lord, Lord Cledwyn, in the spill-over Session. It was repeated by him during a debate on the humble Address. He gave constant examples of ways in which the legislative pressure was quite excessive on your Lordships' House and in my experience—although that is now some time in the past —on the other place.
§ I turn to the second matter which is not ambition but officiousness. That is mainly the responsibility of the civil servants. They have the important duty of keeping orderly administration; and, being able and devoted public servants, they are constantly aware of the inevitable defects as they develop in orderly administration. Therefore, they have a constant zeal to improve. In fact, I nearly said a constant itch to improve. It is that zeal or itch which leads to such legislative anomalies, to say the least, as Henry VIII clauses whereby the Minister can arrogate to himself the normal parliamentary functions of repealing and amending legislation.
§ What can be done about that? Perhaps I should mention this again under the heading of the influence of civil servants. They are constantly concerned with the detail of administration; and it is that excessive detail, too, which is liable to get into our statute book. Primarily, it is for the Minister to control his officials. When Sir William Harcourt went to the Home Office, he addressed his civil servants together and said, "My job is to prevent your governing the country so well that an infuriated populace will hang you from the lamposts in Whitehall". I should like to see that sort of firmness used by Ministers with their civil servants who, in their perfectly laudable zeal to improve, are exerting this pressure on legislation.
§ Certainly I do not minimise the duty of Parliament to show vigilance, particularly in the scrutiny of Henry VIII provisions and the volume of secondary legislation. Again, I shall leave that to those of your Lordships who I know are interested in that respect.
§ I turn to the quality of legislation. The Renton Committee identified a number of faults: complexity, lack of clarity, prolixity and over-elaboration. I doubt whether any of your Lordships would claim that those faults are any less pronounced today —rather the contrary.
§ The Renton Committee quoted a very important memorandum from the two senior Scottish judges of the time in which they said that if you try to legislate for particular instances you are sure to miss 384 some and it will be those that will turn up before the courts and the courts will not know what Parliament meant. They went on to say that as judges they are quite used to applying general rules to particular instances, and they made a plea that the legislation should be in general rules rather than trying to cover every envisageable situation. No regard has been paid to that at all, although that was firmly endorsed by the Renton Committee.
§ Therefore, one has a mass of administrative detail —and this goes to the quality as well as the quantity of legislation —with long passages, especially in the schedules, telling the recipient of a power exactly what he should do in every conceivable situation which is envisaged, notwithstanding that any sensible person could be safely relied upon to do what he is told to do.
§ Where does the remedy for that lie? Again, in the machinery of government and, this time, in the legislation committee. That was much discussed a few days ago at the start of the Courts and Legal Services Bill. The noble Lord, Lord Rippon, and the noble and learned Lord, Lord Rawlinson, described how the legislation committee operated in their time, taking care of precisely the sort of ills to which I have referred. That was also my experience slightly before their service on that committee.
§ The legislation committee no longer performs that function. I believe that that is conceded and indeed is quite incontrovertible on the face of our legislation. To do any good as a scrutiny committee, that committee must meet some time before a Bill is introduced in time to tell a Minister and his senior civil servants that the Bill must be taken back and redrafted where necessary. However, I understand that at the moment the legislative committee meets about 24 hours generally before a Bill is introduced. That is merely one aspect of its failure to perform its traditional function. Again, I ask the noble and learned Lord: does he accept that the legislation committee no longer scrutinises and supervises the drafting of legislation? If not, as it seems, what does he propose should be done?
§ The last matter is control of parliamentary counsel. At present, parliamentary counsel come under the Prime Minister who of course has other things to do than to deal with the drafting of particular pieces of legislation. Sir Robert Andrew, a recently retired civil servant, was asked to advise on the government legal services; and as for parliamentary counsel, he advised that they should come under the law officers. That was not accepted, and parliamentary counsel remain in a sense uncontrolled.
§ The noble Lord the Lord Privy Seal, when we discussed this, kindly told me that there was a safeguard in that every Bill was seen and considered by the law officers. I can only say that, judging by the Courts and Legal Services Bill, that is not operating properly. About seven Henry VIII clauses slipped through without explanation, and each, with the exception of one, was an arrogation to a Minister of the power to legislate which was formerly the concern of Parliament, and all those were subject only to negative resolutions. I asked without receiving any answer, whether those provisions had 385 been drawn to the attention of the law officers. Quite obviously they had not been. If they had been, at the very least we would have had an affirmative resolution. At the very least there would have been an explanation to your Lordships; and there was not.
§ My final question is: what machinery exists to alert law officers —since they are the only bodies left to supervise the drafting of the statutes —to questionable provisions? I venture to leave that question to your Lordships.
§ 8.30 p.m.
§ Lord Rippon of Hexham
My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has deserved our thanks for drawing attention to a situation which is causing increasing concern. No one can doubt the increase in the quantity of legislation. We have certainly come a long way since a reforming Liberal Government in 1912 was content with 146 pages of legislation, including the Finance Act. I regret to say we have also come a very long way since the days when, in Opposition, the Conservative Party criticised the Labour Government for overworking Parliament. I remember how we demanded less and better legislation.
I suggest to all my colleagues on this side of the House, not least those on the Front Bench, that they look at an excellent pamphlet written by Sir Geoffrey Howe in 1977 published by the Conservative Political Centre entitled Too Much Law. He wrote:We are doubling the statute law once in every 15 years. It should be the first duty of Parliament to resist the temptation to add any more. We must make fewer laws and the laws fewer".Unfortunately we now seen determined to double statute law once every five years. Now that he is Leader of the other place, let us hope that Sir Geoffrey will remember, especially in the light of some of the legislation now before us, his wise injunction then:We should not be too ready to conclude that old legislation will necessarily be improved by replacement with a comprehensive modern law".That is perhaps a matter for consideration by my noble and learned friend the Lord Chancellor. For me this is an old theme. I recall the debate on procedure in the other place on 2nd February 1976 when it was completely orthodox conservatism for me to say:The real need is for less legislation and above all for such legislation as we have to be much more carefully prepared and scrutinised".I remember on that occasion I welcomed the relatively new Renton Report on the preparation of legislation, to which the noble and learned Lord, Lord Simon of Glaisdale, referred. I described it as one of the most important documents to come before the House for a very long time. It is a gold-mine of ideas. Sadly, we have still to dig out the gold.
I hope we may be able to use the short debate which is to take place on Wednesday, 14th February, to discuss more fully ways in which we can restore parliamentary control over the form and the content of legislation; for example, by a pre-legislation Select Committee which I confess I also argued for in 1976. One must be very patient in these matters.
386 Tonight I should like to speak about the nature of the problems we have to seek to solve and consider what has happened. According to the figures given to me by the Leader of the House in answer to a Written Question and making allowance for the conversion to a new page format, we enacted 2,170 pages of statutes in 1988 and a staggering 2,581 pages last year; a dubious record never exceeded. That compares with 790 pages in 1977 and 830 pages in 1978, the last two full years of Labour Government. Altogether in the past five years of Conservative Government we have introduced double the amount of legislation that we dealt with in the last five years of a Labour Government.
An ancient poet once said,A big book is a big mischief".For my part I believe that the sheer volume and complexity of legislation today is such that it is quite impossible for either House of Parliament to scrutinise or discuss it properly. It constitutes a new form of despotism, giving increasing power to the Executive. Side by side with the increase in the quantity of legislation —perhaps not unnaturally —has come a decrease in the quality. Time and again Government amendments alone exceed in length the original Bill as first introduced. An example of that was afforded last year by the Children Act.
It is not the fault of the draftsmen. They are obviously hideously overworked. Again, according to figures given to me in December 1988 by the Leader of the House, there were only 45 full-time and three part-time draftsmen. Their average salary is £34,254 per annum. Moreover, it would appear, as we have discussed tonight and on other occasions, that they no longer have in quite the same way as I recall the assistance of an effective legislation committee of the Cabinet to help them keep departmental Ministers and their officials in check.
I can draw on some personal experience in this regard. I first became a Cabinet Minister over a quarter of a century ago and I can say with absolute confidence that when Lord Kilmuir and the first Viscount Dilhorne were Lord Chancellors, and when the noble and learned Lord, Lord Simon of Glaisdale, and my noble and learned friend Lord Rawlinson of Ewell were law offices, most of the recent Bills would have been returned work for the Ministers and their departments.
The mass of legislation is one thing, the mode is another. The practice whereby the Government seek in statutes to make their general intention clear, although in some complexity, while leaving detail —sometimes essential detail —to subordinate legislation is another growing mischief. Increasingly the Government, in spite of the length and complexity of Bills, seek skeleton or framework legislation allegedly to allow greater flexibility in bringing it into operation. Time and again, as the noble and learned Lord, Lord Simon of Glaisdale, has explained, they use the Henry VIII clause to give them the right to amend or even repeal primary legislation by order.
As a result, according to figures presented to the Commonwealth conference on delegated legislation last November, the number of pages of delegated 387 legislation grows each year. The conference was told that on average 10 instruments are published every sitting day of Parliament, some of which reach 100 pages or more. They cannot be amended. They are rarely even debated, whether it is negative or affirmative resolution. So far as your Lordships' House is concerned, I understand the practice is in any event not to divide against them.
The Leader of the House, if I may say so with some respect, replied a little blandly at Question Time on 16th March last year (at col. 330 of Hansard):the fact is that the less that goes into secondary legislation the more provisions have to be written on the face of Bills".That is supposed to save parliamentary time, but I think that is a fallacy. Not only does Parliament lose all effective control, but we have to consider one amending Bill after another as the chaos created by the bad legislation has to be corrected.
Because the primary legislation is so imprecise, the detail over which Parliament has surrendered control frequently comes as a very nasty surprise. That is what has happened with the Financial Services Act, the purpose of which appeared admirable; hurrah for the protection of the small investor. However, it has already had to be amended in the Companies Act and it will almost certainly have to be amended again before long.
Your Lordships may have seen a leading article published in the Evening Standard on 17th January headed "More worse government". It said this:Less and better government was what the Conservatives promised the nation in 1979. Now more and worse government is the norm".Commenting on the Financial Services Act, the leader writer —and it is not a paper in any way hostile to the Government —concluded:The Act is a disaster. Investors now lose more through the phenomenal cost of compliance with the plethora of complex, pettiflogging and generally pointless controls imposed by the Securities and Investments Board than they might ever have lost through fraud.That was a warning given right at the beginning by the noble Lord, Lord Lever, who said that there was a great danger of putting honest men to great expense and still not dealing with the crook.
A similar story can be told about legislation affecting local government. In 10 years we have had 50 Acts concerning local government generally, including more than one a year reforming —if that is the right word —local government finance. The abolition of the rating system and its replacement by a community charge and a new business rate was intended to be a substitute for what had become a shambles. It was called a new fairness and a form of accountability that would give local authorities more freedom. However, because the Government and the Act did not explain how it was to operate, but left it all to be worked out later, we are now told that there may have to be more legislation so that the community charge can be capped if necessary.
One way and another I believe that Parliament is now in a state of acute malfunction. I shall be interested to know what the Government propose to do about it.
§ 8.41 p.m.
§ Lord Grimond
My Lords, we must be grateful to the noble and learned Lord, Lord Simon of Glaisdale, not only for his speech tonight but for his continuous efforts to achieve something concerning the subject we are now debating. He has made efforts in which he has been extremely well supported or led by the noble Lord, Lord Renton, whom I am also glad to see here. I hope very much that their words and those of the noble Lord, Lord Rippon, will be listened to.
There can be no doubt that there is far too much legislation. Why is that? It is a reflection of the spirit of our times which expects the Government to do something about everything. I was slightly surprised that there was a special meeting of the Cabinet after the recent gale. The gale may have been very serious and distressing for some people, but what the Cabinet thought it could do about it, short of prayer, I do not know. If a local authority in Orkney were forced to meet every time the wind rose above 50 to 60 miles an hour, the members would hardly ever get to bed.
I criticise the Government to some extent, but there is no doubt that the Government like legislating, and it is entirely their fault that they produce all this legislation. They can stop producing it. It is no good telling us that they intend to do that. I have been in this House a very short time, but every year I have heard the Leader of the House apologise for the amount of legislation and say that the situation will get better. Since I have been in Parliament the width of the statute books has trebled and it is still increasing. There is no sign of things getting better.
The problem is similar to that of inflation. Every government says that it will stop it. According to the paper tonight, it has just been agreed that a further seven and half per cent. will be paid in public salaries. Nothing will be done about inflation or the amount of legislation which comes to this House until the Government determine that it will be done. Nothing in the way of drafting will solve the difficulties that we are in unless the amount of legislation is reduced. If the Government wish it, I shall give them a list of Bills which should never have seen the light of day and which will never be missed. It is quite untrue to say that all the legislation produced is necessary.
Another factor which is becoming more and more obvious is the lack of skill. Here again, I believe it to be endemic in the country. A lack of skill is shown in the mending of London Transport escalators and in the drafting of Bills. There the fault lies, if not with the Government, then with the people at the top of the governmental process.
I wish to give one example. I took a small part in the progress of what is now the Self-Governing Schools etc. (Scotland) Act 1989. It should not require a solicitor to interpret that Act. It is an Act that will be of some interest to anyone who has children at school in Scotland. The Act is not all that difficult to understand in what it is trying to do. One would have thought that the legislation would have been drafted with some logic and reason, and that the ordinary parent, on reading it, would, early on, 389 find whether the particular school in which he is interested is covered in that legislation, and what a self-governing school might be.
The ordinary parent will read the preamble and find that the Act applies to certain schools. He will then want to know whether the school he is interested in is one of them. The first section concerns the duty of the Secretary of State to maintain self-governing schools. There is no indication of what self-governing schools are or whether the school in which the parent is interested is one of them. Then he will begin wading through all kinds of things under the following headings:Qualification for and disqualification from membership of a board of management.When the reader comes to Section 19, one might think that he is about to learn what a self-governing school is. However, he will be wrong because there he is referred back to Section 16.
- Proceedings of board of management.
- Execution of documents.
- Reports and parents' meetings".
For most Acts one would require the assistance of a law library in order to understand them. Not only do the Acts refer one backwards and forwards through them, but they refer one to innumerable other Acts which most people do not have in their homes. The noble Lord, Lord Renton, and others, have given fairly good indications of how Bills should be drafted. However, no notice whatever appears to be taken of them. A certain amount can be learnt from the Army which states in an operation order that one should have objects and a method. That would not be a bad elementary beginning for the drafting of Bills.
I mentioned this matter during the passage of the self-governing schools Bill and that admirable, honourable and honest noble Lord, Lord Sanderson of Bowden, replied that Bills are difficult to follow. He said that he accepted what I said about that Bill. He accepted that it was unintelligible and badly drafted. That was very endearing of him but not exactly encouraging in that after all these years we have not progressed any further in drafting Bills in a better way. The noble Lord said that it was permissive legislation and that the Government had done a great deal to make interpretation easier.
That means that the Government have a gang of public relations officers who are trying to produce a document which the odinary person will understand. I do not believe that is the way in which this country should be run. I do not believe that it should be run by drafting unintelligible Bills and then to employ public relations officers to try to indicate what the Bills are supposed to mean. So much for the treatment of particular Bills.
There is a general matter which is of great importance. Huge Bills are introduced in the other place. In due course they are almost always guillotined if they are of any importance. That means that the latter parts of Bills are not discussed at all. Bills are then sent to this House where hundreds of new amendments are very often put down, not only by the Opposition but by the Government. In this House the Government add amendments to Bills 390 and very often these are made towards the end of the Session. The result is that they do not receive proper investigation in this House. When the Bills are amended, they are returned to the other place where they receive practically no more investigation.
The result is that the elected Chamber is more and more losing its control. The Government manage a very proper control through the committees by guillotining the Bills and then by tabling all kinds of amendments that the other place has never seen when the Bill comes to this House. I hesitate to use the word unconstitutional, but I believe that is certainly against the whole spirit and custom of Parliament that should prevail.
Everyone has said that the situation is getting worse, and that there is no sign whatever that the Government are going to change their ways except by words. We all know that the politicians are inclined to believe that if they have said something, then they have done something. I can assure noble Lords that in this case they have done nothing.
I find this a very strange paradox. There are now very many people in the country who do not particularly want a Labour government, but who say, "Well, it might not be so bad. A Labour government might be less inclined to the nanny state. They might introduce less legislation. I think we should have a Labour government rather than have this over-burdening of legislation". This belief that the Government can do everything is now the hallmark of the Tory Party.
§ 8.50 p.m.
§ Lord Harris of High Cross
My Lords, I am delighted to follow my old friend the noble Lord, Lord Grimond, and I specially commend the Social and Liberal Democrats for fielding a second speaker, the noble Earl, Lord Russell, whom I always enjoy hearing. I can say with total honesty that I agree with all three speakers and shall largely go over the same ground, perhaps carrying their criticisms a little further.
I thank my noble and learned friend Lord Simon of Glaisdale not only for raising this neglected question but also for expressing it so briefly: to ask whether the Government,will reduce the quantity and improve the quality of legislation".He could teach the parliamentary draftsmen a thing or two about concision.
This recalls a debate in December 1982 on a three-pronged Motion by the noble Lord, Lord Renton, calling attention to the volume of legislation, to the desirability of some repeal, and to the same need to improve the quality of legislation. At that time the number of public general Acts in force was above 3,000, with 13,000 statutory instruments. As we have heard, after 10 years of Tory administrations solemnly pledged to reducing the burden of government, we have seen no relief from this cascade of legislation. Every year the statute book becomes more bloated.
As an earlier convert than Mr. Gorbachev to the self-correcting possibilities of a competitive market economy, I acknowledge an indispensable role for a strong legal framework. We need laws to define 391 property rights, to enforce contracts, to maintain competition and to support people who are unable to take care of themselves in the market place. But the first indispensable condition for a free society is a rule of law that is understandable, predictable and stable, and all three desiderata are mocked by continued legislative incontinence. The pressure on parliamentary draftsmen aggravates their apparently natural tendency towards prolixity and undue complexity. The multiplication and constant amendment of statutes bring the aims of simplicity, certainty and stability into contempt.
As an economist, I would add that this hyperactivity of our legislators imposes massive costs not only in devising and enforcing so many laws but in the uncounted charges for compliance by the victims. It seems to me that we have at once trivialised the majestic business of lawmaking and magnified the burden of administration in our over-governed economy. As others have said, it is especially disappointing that there has been no perceptible improvement since the notable report of the 1975 Renton Committee on ways ofachieving greater simplicity and clarity in statute law".As a layman I would normally hesitate to voice doubts about the clarity of so many Bills that come before this House. I am, however, emboldened by Appendix B of the Renton Report which illustrates the mumbo-jumbo that passes for the law of the land. It offers eight densely packed pages listing extracts from important statutes, with detailed and devastating comments by leading legal luminaries who frequently confess total incomprehension of their meaning.
On page 28 of the Renton Report, the committee offers a classic example from the National Insurance Act 1946, brought to its attention by none other than my noble and learned friend Lord Simon. It reads:For the purpose of this part of the schedule a person over pensionable age, not being an insured person, shall be treated as an employed person if he would be an insured person were he under pensionable age and would be an employed person were he an insured person".As the report observes, if eminent judges find the law difficult to grasp,how can the layman be expected to fare?".The report added:The Statute Book might sometimes as well be written in a foreign language for all the help the citizen may expect to obtain as to his rights and duties under the law".In the 1982 debate I ventured to refer to the seminal trilogy of Professor Hayek published in the 1970s as Law, Legislation and Liberty. At the centre is this Nobel Laureate's distinction between law, as the evolution of general rules of just conduct, and legislation as the often arbitrary edicts of governments vested with transient authority to impose their will or even their whims with the full force of civil or criminal sanctions.
From Chapter IX of the Renton Report I gather that Hayek's approach is closer to the European tradition of legislating principles of wide application and practising restraint in the proliferation of detailed rules, with large gains in simplicity and clarity. I was certainly struck with the force of the 392 Renton Committee's recommendation in favour of this less detailed style, leaving judges to give effect to such principles in the light of well-established precedents.
In conclusion, I have two further helpful suggestions. The first is to commend the beautiful simplicity of repeal as a partial remedy for what might be called indiscriminate legislative pollution. We must of course be more selective than recent legislators. Indeed the non-party repeal group some years ago set a good example with a one-clause Private Member's Bill which helped to prod Her Majesty's Government to repeal a mouldering pile of obsolete and obstructive statutes on truck so as to enable wages to be paid more safely and economically by cheque and credit transfer.
Strong candidates for similar summary treatment, in my view, might be the Trade Disputes Act 1906, the ragbag of Acts specifying when shops may open and what goods and services they may sell, and large chunks of the proliferating laws on planning, equal opportunities and race relations, where broad principles might suffice to guide judges in deciding the equity of conflicting claims.
My second suggestion offered for further reflection is that we could dispense with many complex statutes specifying exactly how government should provide national and local services if we relied instead on simple laws that laid a general duty on Ministers and statutory authorities and left them free to put provision out to competitive tender and to contract with specialist suppliers. There is mounting evidence that in this way local government services can be more adequately and economically provided, with additional gains in transparency and accountability. A further bonus would be a long overdue step towards the objective of my noble and learned friend of reducing the quantity and improving the quality of legislation.
§ 8.58 p.m.
§ Lord Renton
My Lords, the noble Lord, Lord Harris of High Cross, in his concluding remarks has put forward one or two original suggestions which I have not heard before and I hope that they will be very carefully considered. I should like to endorse the congratulations which have been expressed to the noble and learned Lord, Lord Simon of Glaisdale, on initiating this debate and I should like to thank him for the chance to express our views on this vital matter.
The two matters which he has raised impinge upon each other, because the more legislation there is the worse is likely to be the quality of it. On quantity, one must first concede that legislation is the main instrument of party policy. But this Session the Government have put forward legislation to which they were not committed at the last general election and which was not the subject, so far as I know, of any broad consultation within the Conservative Party in general or indeed of great consultation among the various branches of the legal profession which are affected by it.
The legislation put forward is not fundamental to our party beliefs; or, indeed, the beliefs of anyone, 393 so far as I know. In the post-war years we used to be asked: "Is your journey really necessary?" I suggest that the time has come for the Government to ask themselves on each Bill which is contemplated whether the legislation is really necessary. If they had asked themselves that question they would not have introduced those parts of the Courts and Legal Services Bill or those contained in the Law Reform (Miscellaneous Provisions) (Scotland) Bill which controversially attempt to change the best features of the system of justice on each side of the Border.
Having said that, I have some constructive suggestions to put forward which would make Bills shorter and, I believe, improve the quality of those Bills which are necessary and, of course, one must concede that some of them are necessary. My first suggestion is that the Government should allow much more time for the preparation of major Bills, preferably two years. That would ensure that the draftsman is not rushed and also ensure that there is enough time for consultation with outside experts and representatives of those who would be affected by the legislation. I am thinking especially, for example, of accountants on fiscal legislation.
Secondly, I suggest that there are various matters which should not be included in primary legislation and which should, in fact, be excluded from it. I refer first to unenforceable provisions. To include them results in enacting laws which are ineffective from the start. Each one is a dead letter: there is no point in doing it. I refer next to matters relating solely to the internal administration of government. They can be dealt with, and indeed are best dealt with, by departmental circulars or by regulations binding upon those within the public service, and binding upon them only because it affects only them. I give that as an example of the old chestnut that it is becoming; but we shall continue to pursue it.
The noble and learned Lord, Lord Simon of Glaisdale, and I have tried to get rid of the ancient practice of requiring Cabinet Ministers to obtain the consent of the Treasury. We heard this week that all the process involves is two Lords Commissioners—generally they are fairly junior Whips who probably do not have a clue about what it is that they are being asked to sign —who have to sign certificates. That provision was written into statutes. Indeed, I think that there are 10 such proposals in the Courts and Legal Services Bill alone. Therefore that deals with matters relating solely to the administration of government. Of course there are other matters which arise frequently, but I shall not trouble your Lordships with them this evening.
Thirdly, I suggest that we should exclude directions for controlling the procedures of quangos; that is, independent official bodies established, of course, by statute. Such directions could well be contained in subordinate legislation and I suggest that they should be. However, having mentioned subordinate legislation, perhaps I may suggest to the Government that the form in which such legislation is habitually put before the House is more comprehensible than the form in which Bills are presented to us. I shall be able to answer questions on that aspect at a later stage if any noble Lord wishes me to do so. However, that is a fact.
394 Fourthly, although detailed provisions are necessary to express people's obligations and rights in fiscal and some other legislation and should then be preceded, I suggest, by statements of principle or of purpose, attempts to cover every hypothetical contingency should be avoided. Noble Lords who have experience of another place know that there, even more than in your Lordships' House, Ministers are often asked, "What will be the effect in the following hypothetical circumstance of this particular provision in the Bill?" I think that that occurs more particularly in another place than here, where Ministers are more courageous. I hope that I am not in breach of privilege by saying that. However, the answer given so often in another place is, "Yes, we will consider that and perhaps write something into the Bill". That results in far too many hypothetical circumstances, covered by detail, being written into Bills. Moreover, there are circumstances which very often do not arise in practice. Therefore that deals with detailed provisions which should be avoided and which should be excluded from legislation.
I have a further suggestion to make and it is one which has already been made this evening. It is that the Cabinet legislation committee should resume the task which it used to perform. I happened to be a member of the committee for three years from 1958 to 1961. I was what was called a "permanent member," which meant that one had to attend every meeting, notwithstanding whether one's department was involved in the discussion. It carried out valuable work in improving Bills and indeed I think that the legislation was better in those days.
I remember one of the first contacts I had with my noble friend Lord Rippon of Hexham. It was when he and I were both Ministers. He was trying to defend a Bill which had been put forward and several of us on the committee criticised the legislation. He was made to take it away and knock it into shape and he and the late Lord Duncan-Sandys, who was the Minister concerned, brought the Bill back in very much better shape. It eventually went forward and was a comprehensible measure.
Another constructive suggestion is that Parliament's intention should also be expressed and not left to be inferred. It is interesting to note that the EC has a rule requiring the reasons for each legislative instrument to be expressed. Ministers here say, "No purpose clauses, we do not want them". I pay tribute to my noble and learned friend the Lord Chancellor who, in Clause 14 of the Courts and Legal Services Bill, put forward a purpose clause governing the principles affecting Part II of the Bill. When he did so we had a most interesting discussion. He tabled some amendments to improve it still further. I was surprised that two of those who spoke in the debate said that they were not in favour of statements of principle.
Perhaps I may say why the Committee on the Preparation of Legislation recommended that there should be purpose clauses and statements of principle. Members of the higher judiciary (the Lord Chief Justice, the Master of the Rolls, the Lord 395 President of the Court of Session, the Lord Justice Clerk and other noble and learned Lords, including the noble and learned Lord, Lord Simon of Glaisdale) gave evidence to us and said that they often had difficulty in interpreting Acts of Parliament. They realised that they had to contain a good deal of detail, but that if only Parliament would make clear the intention they would not have such a difficult task deciding cases upon which they were merely guided, sometimes by ambiguous detail. They asked that the purpose and principle be stated, when they would be much better placed.
My final constructive suggestion is that wherever appropriate the Law Commission should be asked to report on a proposal to legislate and to publish a draft Bill. That goes back to my suggestion that there should be two years for the preparation of Bills; but it means that Bills would not come forward so quickly into the government machine. Nevertheless, it would be a good thing.
It is important that the noble and learned Lord should have raised this matter. It is a big subject. We live with it all the time. We must try to get it right. There must be improvement, because badly drafted, incomprehensible or ambiguous laws are a disservice to democracy and bring Parliament into contempt.
§ 9.12 p.m.
§ Earl Russell
My Lords, I am aware that it is convention to express gratitude to the noble Lord who introduces the Motion but it is well recognised that some Lords are more grateful than others. On this occasion I am particularly grateful to the noble and learned Lord, Lord Simon of Glaisdale. These are important matters. Of course we regularly discuss procedural questions in the course of the pieces of business which occasion debate about them. That means that we tend to discuss them with a tincture of our opinions of the measure under discussion. That risks confusion of form and substance.
It is important that we have the chance, at least this once, to discuss those questions in their own right. I am aware of my temerity in doing so. I was told by one of my noble kinsmen shortly after my maiden speech that a peer is a new boy for the first 10 years. I recognise the truth of that, but if through inexperience I go astray there are plenty of people here who are capable of putting me right.
I agree with what has been said about the quantity of legislation. This has happened before. There was a big problem of this sort early in the 18th century. There is a most enjoyable book on it by David Lieberman of the University of California at Berkeley. Part of the problem was the first experience of a permanently sitting Parliament with time on its hands, itching to use its new opportunities and —this is in line with many things that have been said tonight —not sufficiently identifying the general principles. One commentator remarked that Members of Parliament might introduce the death penalty for those who stole their turnips, never stopping to think that the catastrophe which that year had overtaken their turnips next year might overtake their potatoes. I wonder whether the 396 revolution in information which we have had within our memory has created a similar itch of opportunity to intervene. I also entirely agree that the noble and learned Lord, Lord Simon of Glaisdale, has hit the nail on the head by linking quantity and quality, for legislation is one area in which "more" means "worse". We can all remember some of the enormous Bills we have had recently. For example, there was a protest by the noble Lord, Lord Renton, on the last night of the Committee stage of the Local Government Finance Bill at an enormous raft of unintelligible government amendments which we were asked to pass on the nod.
However, if we do not have these enormous Bills we must have recourse to enabling powers. They avoid a good deal of parliamentary scrutiny. They deprive us of the opportunity to amend and, in this Chamber where we do not reject, the power to amend is precious. We should not lightly be deprived of it. There is a proper place for enabling legislation.
I have been wrestling with myself to try to work out what that proper place is. I should like to try out some thoughts on your Lordships, and I do not have much idea whether I have it right; I should be glad to learn.
The acid test of whether a matter is proper for enabling legislation is perfectly simple —if it would empty the Chamber if it were embodied in a Bill. We cannot put everything into a Bill and some matters are so abstruse and technical that I do not think we need insist on taking up parliamentary time in discussing them.
The principle of flexibility —rules that need frequent variation in the light of new evidence —is another area which is proper for enabling legislation. There are also matters which are too technical to be put into legislation. Over the weekend I looked at Clause 10 of the recently published Social Security Bill, dealing with energy insulation. The job of specifying precisely which dwellings and precisely which persons should be eligible to benefit from that clause is one which is properly left to regulations. However, there is also truth in the words of the Donoughmore Committee that minor legislative powers are regularly left to delegated legislation. The adjective is not to be forgotten.
There are a number of criteria which we should think about in picking out matters which are not suitable for regulation. None of those criteria is immutable. When I first arrived at Yale I was told that all Yale rules were construed to contain the word "normally". Perhaps one should say the same about parliamentary procedure. Obviously enabling powers should not enable the Minister to do anything other than what Parliament intends. I have not recently observed an offence against that principle. That may argue that I am guilty of insufficient vigilance, but since I have not seen one I shall not pursue it further.
We should in any enabling measure have a sufficient exposition of the general principles which these enabling powers are to be used to pursue. I was interested and amused to discover that where we now say "framework Bill", the Donoughmore Committee says "skeleton Bill". Some of the skeletons that we 397 have had recently have been very emaciated. When I hear the words "framework Bill", I am reminded of my childish attempts to play with Meccano, which almost always ended in tears, very often for the same reason as some of our framework Bills—because some of the pieces were missing. We must have an adequate exposition of the purposes for which the enabling powers are desired.
In addition, the Government should normally have decided what they wish to do with the powers. The point which particularly concerns me at the moment is the use of enabling powers to enable the Government to drive legislation forward with greater haste; to take powers to do something before they have decided exactly what they want to do. I recall, for example, a debate on the Education Reform Act on the testing and assessment powers under the national curriculum. Noble Lords were not immediately inclined to oppose these provisions but they wished to know what they meant. Increasingly as the House probed it became clear that the Government had not yet decided what they wanted to do with those powers. Indeed they have not decided yet. Some of my new colleagues at King's College, London, are even now engaged on research into how those powers might be used. I entirely agree with my noble friend Lord Grimond who said that this procedure was making a mockery of Parliament. I think also in relation to enabling powers that we need enough information for the House to decide whether it is for or against the proposal concerned.
I remember an occasion when we were debating the football membership Bill. The point that particularly concerned me was the rights of the casual spectator. I wanted to know before deciding whether I was in favour of the Bill whether it would be possible to join the scheme and go to the ground on the day of the match. The Government could not tell me that as they did not know. If they do not know what a measure means, I do not see how they can expect us to decide whether to approve it.
The House is also entitled to decide whether a Bill is capable of being put into effect. If a Bill is not capable of being put into effect, we are entitled at least to ask that it be taken back and thought through until it can be put into effect. It is within the powers of Parliament, although I hope it will never do so, to enact that all teachers should teach that the earth is flat. However, an enactment that the earth is flat would be ultra vires. That fact will not change as a result of any Act we may pass.
I am again reminded of the football membership Bill. It was not going to be clear whether that Bill was capable of being put into effect until the scheme was drafted and published. That scheme was not available to us. I think that the scheme should have been available to us when we considered the Bill. The Government should not have put the Bill before Parliament until they had drafted the scheme and could tell us how it was going to work. The Bill took up 120 hours of parliamentary time. There are many other more useful things that we could have done with that time. It is of course a special concern of this House to consider the practicality of what is being proposed. When we are offered anything where 398 the Minister wishes to take enabling powers and cannot pass at least the majority of those tests, it is something that he ought to take away and think about.
§ 9.22 p.m.
§ Lord Ponsonby of Shulbrede
My Lords, I join with others in thanking the noble and learned Lord, Lord Simon of Glaisdale, for introducing this Unstarred Question this evening. Not a single noble Lord who has spoken in the debate has disagreed with the general thesis of the Unstarred Question or with the noble and learned Lord's contention that little had happened since the Renton Committee reported in 1975. The noble and learned Lord emphasised that nothing had been done since that time to stem the flow of legislation. One is reminded of the adage that it is always much easier to make a long speech than a short and pithy one. I think that is probably true also with regard to the writing of legislation.
Although there has not been much dispute on the problem, there has been much less agreement on the solution. We have been slightly short on answers. As regards the number of Bills, there has not been such a discernible trend towards increase in the amount of legislation over past years but that conceals the fact that Bills may be very much longer individually and may cover a very much greater range of subjects than would have been the case in the past. The Bill which we were discussing only yesterday is particularly relevant in that connection. We were discussing the Law Reform (Miscellaneous Provisions) (Scotland) Bill, which contained a number of other subjects within that miscellaneous title. It is well known that if civil servants cannot immediately see how to put an item of legislation through Parliament they will tack it on to a Bill which happens to be going through Parliament at that time. We are reminded forcibly of the recent Employment Act. A new section on training was tacked on to the Bill at the very last minute as it went through Parliament.
Although there may not have been much change in the number of Bills, there has been a very discernible trend in the number of pages of legislation passed at any one time. Some of the relevant figures were quoted by the noble Lord, Lord Rippon. During a five-year period in the late 1940s, under a reforming and vigorous Labour Government, there were fewer than 1,000 pages of legislation each year, During the 1950s the number of pages started to creep up past the thousand mark. In the 1960s it increased to around 1,500 pages a year. During the 1970s the average was 1,874 pages of legislation a year. When we move into the 1980s we find that up to 1986 the figure was 2,540 pages of legislation a year. At that point the format of government Bills was changed so that it is difficult to make a comparison with later years. One may say that that was another way of changing government statistics at that time.
§ Lord Rippon of Hexham
My Lords, the figures which I quoted —which were kindly supplied to me by the noble Lord the Leader of the House —make that comparison. Taking into account the change of format, the amount of legislation is much greater 399 than before. The noble Lord the Leader of the House has kindly made the comparison.
§ Lord Ponsonby of Shulbrede
My Lords, the figures available to me suggest that the increase in the total number of pages of legislation in the 1980s compared with the 1970s is of the order of 35 per cent. That is a very sizeable increase in the amount of legislation going through Parliament in that 10-year period.
The Procedure Committee, meeting recently, was informed that 1,100 Commons amendments to major Bills were considered at the rate of just under one a minute during the overspill period. I am sure that if the Government Chief Whip was able to see that rate of progress on the Courts and Legal Services Bill he would be a far happier man. However, that is not the point. The point is that of the 1,100 amendments many were not debated at all in either House. They were tabled at a late stage —at Report stage —in another place and not discussed in detail. I do not believe that that is the way Parliament should do business.
Parliament has a task of scrutiny. This House in particular has a role as a revising Chamber, a duty to scrutinise legislation. I am sure that most noble Lords want to do that job properly and to be given the opportunity to do it properly. If we look at how we spend our time, which is very different from how they spend their time in another place, we find that during the last Session of 1988–99 we spent just over 58 per cent. of our time scrutinising Public Bills. Of those, 56.'3 per cent. were government Bills and 2.2 per cent. were Private Members' Bills. Those figures differ little from those for a period five years earlier. The major part of our time is spent scrutinising legislation and we must be given the proper opportunity to do that.
That sometimes requires noble Lords to exercise a measure of self-discipline. The noble and learned Lord, Lord Simon, has often expressed his concern about the length of time taken by some debates and the fact that we sit late into the evening. On the other hand, I am sometimes reminded that time-limited debates in the House produce pithy and good debates. People have sometimes tried to grapple with the idea of applying a time limit to debates on amendments, but that is a difficult problem to address. A little self-discipline might enable us to scrutinise more succinctly and do the job that we are expected to to.
A number of noble Lords mentioned the question of the drafting of Bills. It is obviously important that Bills should be drafted as effectively as possible. I support everything said by noble Lords about the sometimes undue haste with which Bills are published. I am told that, just before one recent Bill reached the printers, the draftsmen discovered that another 60 amendments ought to have been inserted into it. The publication of that Bill was held up by a fortnight or so in order that it might appear in a slightly better form that might otherwise have been the case.
Those who theorise about Parliament's present method of dealing with Bills sometimes say that 400 there is quite an advantage in the time lag in progressing Bills between the two Houses, since it gives the government draftsmen time to put Bills which were not initially in good shape into better shape. The noble Lord, Lord Grimond, quoted powerful figures and referred to the number of amendments introduced by the Government into Bills. According to my figures relating to the last four periods of government, in the period 1974–1979 the average number of amendments made in this House was just over 1,000; in the period 1979–83 it was still just over 1,000; but in the period 1983–87 it increased to 1,763. In the short period of the present Government, the number of government amendments made to government Bills in the House of Lords increased to 2,732. That is a large number of amendments which shows that legislation may be coming forward too early before it has been properly considered.
The Renton Report referred to the problem of the number of draftsmen available and the training of draftsmen, but one must also consider the burden put on draftsmen at particular times of the year. I understand that there was a heavy burden on draftsmen last year during the period from the end of the Summer Recess until we returned, involving the drafting of all those hundreds and thousands of amendments to which I referred in connection with Bills which were already going through Parliament. Thus, those draftsmen who might otherwise have been drafting Bills for the new Session were unable to do so.
Noble Lords will know that there is always a rush by any government as soon as the new Session opens to publish and bring forward as soon as possible all the Bills for the Session because, if the Bills for a particular Session of Parliament are to get through, they have to start their progress preferably before the Christmas Recess, and certainly not very long after that, or there is a great backlog of work which may build up in order to get the legislation through.
One wonders whether we are necessarily always acting entirely sensibly in this matter or whether we should look again and re-examine at some point the fact that we always insist that unless a Bill gets through in a particular Session of Parliament that Bill is lost completely. I think that there is great benefit in having a limit put on the amount of time that a Bill takes to go through Parliament but I am not sure whether we should be so rigidly tied to keeping a Bill alive during a particular Session of Parliament or whether we could have a different kind of time limit which would enable a Bill introduced later in the Session to carry on into the next Session. That is something which might be re-examined.
Obviously there are answers to be made against such a proposal. However, if one had a rolling programme of legislation, it might be a way to mitigate this particular problem. That is done in the field of the Private Bill. One lets a Private Bill go over from one Session to the next. On the other hand I believe that it would be wrong if there were no time limit. However, I believe that that is something which could be looked at. It is also certainly true —and I do not think that this point has been 401 mentioned this evening —that poorly drafted legislation always produces a field day for lawyers. I cannot count the number of times that lawyers have said to me about certain legislation, "They have got this Bill all wrong. It will produce an absolute bonanza for us over the next few years". I am sure that that is true.
Our duty as Parliament is in fact to ensure that there is no such bonanza. I can assure the House that I am not trying to do out of a job the noble Lords, Lord Rippon of Hexham and Lord Renton. The point made by both that the law officers should have the power—indeed, they do have the power, as I understand it —to return inadequately drafted Bills to be drafted again, seems to me to be a very valuable one. They are probably the only people who are capable of making the decision in the legislative committee of the Cabinet that a Bill is inadequately drafted. No departmental Minister on his own would accept that contention. It would probably require more resources and more energy but it seems to me that Parliament would be saved a great deal of time and that we should have better legislation if the Bills that were inadequately drafted were returned to be redrafted.
The other idea that we have discussed from time to time is whether non-contentious Bills should be taken by a Select Committee. We tried that, again as an experiment, some two or three years back. I believe that it was the general consensus of the House that that was not in fact a way to deal with the problem. I have always been convinced that the system that we have of a Committee of the Whole House, which in a sense is a fluid committee, in that its membership will vary from day to day according to who attends the House on a particular day, in itself has great merits over a small Select Committee where everybody's views are known and the members will vote in a given way, possibly on every amendment that goes to it.
On the other hand, when we discuss something on the Floor of the House we do not know exactly which Lobby the Peers will enter, though one can make quite a good guess from time to time. However, as regards the amendments on the Courts and Legal Services Bill, an examination of the Division Lists produced some interesting figures, with the Opposition and Government Front Bench voting together on some occasions and Members from other parts of the House, voting another way. It is a fluid situation. That is one of the great advantages of the system that we have of considering legislation on the Floor of the House.
I again thank the noble and learned Lord, Lord Simon of Glaisdale, for raising this Question. Everyone appears basically to agree with his thesis. On answers we are less solid in our replies.
§ 9.40 p.m.
§ The Lord Advocate (Lord Fraser of Carmyllie)
My Lords, perhaps I may join in the thanks that have already been expressed to the noble and learned Lord, Lord Simon, for the opportunity that he has afforded by putting forward this important Question. I begin by saying that of course there must 402 be times when there is bad drafting; there must be occasions when that drafting has to be amended. I recollect on one occasion discovering to my horror that there was a provision which read:It is an offence to attempt to commit an offence under this section",which, if noble Lords think about it, is utterly impenetrable. While that may have been a mistake by the draftsman, he reasserted his considerable skill by correcting that error in a place in the statute that I defy anyone to discover.
What is of interest in a debate such as this is that, while both sides of the House seek to consider the quantity and quality of legislation, and to express views as to that quantity and quality, I hope that I can be forgiven for being a little sceptical about one aspect of it. I do not think that anyone in this short debate this evening who expressed critical opinion on the drafting of a Bill did so in respect of any legislation for which we had a policy approval. The objectivity of our approach to drafting and the quality of it would be better understood and better expressed if we were to select those pieces of legislation of which we approved rather than those where there are clearly policy concerns about their validity.
I make little apology for being part of a vigorous and reforming Government. If large areas of our public life had not been taken into public ownership, it would not have been necessary to embark upon a campaign to return them to the private sector by elaborate legislation. That is a necessary and important part of policy. One cannot escape from the approach that has been taken. However, quite apart from those important policy areas, there are also clearly very considerable pressures on any government to bring forward legislation that is thought to be of broad and important worth.
For example, noble Lords will be very well aware that ever since the report of the committee that was chaired by the noble Baroness, Lady Warnock, in 1984, there has been steady and continuous pressure on the Government to bring forward legislation to cover the areas that she and her committee considered. That has now been done. I believe that I have been approached by every single political party in Scotland urging the Government, and urging me to use what influence I have, to bring forward legislation to implement what Professor Peter North proposed in relation to road traffic. I am also very well aware within my own responsibilities for the Scottish Law Commission that it has attached to a number of its reports some very important Bills that similarly I am frequently urged to ensure are brought on to the statute book.
As the noble Lord, Lord Ponsonby, indicated rather gloomily as he sat down, there is concern about the quality and quantity of legislation. However, apart from the proposals which were clearly set out in the report of the Renton Committee, not many solutions have been put forward for reducing the broad quantity.
I point out to the noble Lord, Lord Rippon, that while I have every reason to believe that the figures he gave regarding the number of pages of legislation 403 in the statute book are correct, the figures that he gave for 1988 include approximately 1,000 pages of the income and corporation taxes consolidation. Therefore, when one looks at the amount of legislation purely in terms of the number of pages, one must be cautious to ensure that the consolidation work which is properly undertaken is understood.
§ Lord Rippon of Hexham
My Lords, I quoted government figures which were compiled on a basis which shows a fair comparison. There were only three years in which 2,000 pages were exceeded; they were 1986, 1988 and 1989. They cannot all concern consolidation legislation.
§ Lord Fraser of Carmyllie
No, I did not suggest that. However, a thousand pages is a considerable amount of consolidation legislation.
§ Lord Ponsonby of Shulbrede
In order to qualify the figures that I gave, I point out that they did not include consolidation Bills.
§ Lord Simon of Glaisdale
Does not consolidation legislation occur in every Session? Was there not massive housing consolidation legislation in 1985 which was considerably more than the instance that the noble and learned Lord mentioned?
§ Lord Fraser of Carmyllie
I have no doubt that at different times there have been large consolidation Bills. However, if one analyses the growth in legislation, it would appear to withdraw from those figures the consolidation pages included in the overall total.
In answer to the noble and learned Lord, Lord Simon, I point out that, while the Lord Advocate of the day may not have been a member of the future legislation committee, I am — —.
§ Lord Rippon of Hexham
My Lords, I should like to point out that the figures I quoted excluded consolidation and Scottish Acts.
§ Lord Fraser of Carmyllie
I am grateful to the noble Lord. I was not seeking the noble and learned Lord's congratulations but merely wished to point out that, while many Ministers and heads of department come to the commitee as supplicants —and I am not in a position to indicate which of them fail —it frequently happens that they lose out not only on one Bill but often on two. As my noble friend Lord Rippon reminded the House, in 1977 his colleague in another place, Sir Geoffrey Howe, wrote the pamphlet Too Much Law. Sir Geoffrey now chairs the committee and anyone who is familiar with him will know that he is not a man easily to change his essential attitudes——
§ Lord Renton
I am grateful to the Minister for giving way. It has been pointed out that the committee used to be a scrutiny committee. We know that for a good many years it has been merely 404 a business committee. Has it become a scrutiny committee once again or is it still only a business commitee?
§ Lord Fraser of Carmyllie
My Lords, I believe that the committee to which the noble Lord referred is the legislation committee rather than the future legislation committee about which I was originally asked a question.
The noble and learned Lord, Lord Simon of Glaisdale, referred to the role of the legislation committee in his day and that was repeated to me. Its function then was to scrutinise Bills before they were presented to Parliament. Noble Lords will be aware from the response given by my predecessor the noble and learned Lord, Lord Cameron of Lochbroom, in a debate on very much the same subject in 1987, that the Government still endorse the value of that role.
I cannot comment on what may have been the position in earlier administrations when the noble and learned Lord indicated that, as one of the law officers, with the Lord Chancellor, he was a member of the legislation committee. However, I assure him that the practice in recent years has been for Bills to be circulated to the members of the committee in time to enable any points of drafting which may give cause for concern to be considered.
I hope that noble Lords will agree that that committee cannot be expected to pore over drafts for long periods of time. It cannot be the committee's function to duplicate much of the work of the parliamentary draftsmen. I consider —and it is not just because I have responsibility for some of them —that they are highly skilled lawyers with a considerable amount of experience in drafting statutes. However, the presence of the law officers remains, and of course there are still circumstances in which, possibly through comments before the committee actually convenes, legislation is taken away for further checking.
My noble friend Lord Rippon said that the Henry VIII clauses are of concern to him, as they are to the noble and learned Lord, Lord Simon. My noble friend made reference to another debate which we shall be having on 14th February and, in view of the proposal at the centre of that debate, I prefer to leave the matter of such clauses until that time.
A number of very detailed points have been put to me. They have covered a wide range of issues which were considered by the Renton Committee and clearly they are still matters which give rise to concern. I am sure that my noble friend Lord Renton will be the first to appreciate that many of the recommendations which he put forward have not been followed but, on the other hand, a considerable number have.
The noble Lord, Lord Grimond, was critical of the Self-Governing Schools etc. (Scotland) Bill. In many respects it would appear to me, although I must read carefully what he said and the quotation which he gave, that many of the recommendations of the Renton Committee were pursued in the manner in which that particular Bill was drafted.
405 A number of observations were put to the House on the question of statements of principle. Certainly, there are opportunities, as has been indicated, when such statements of principle can be valuable: where there is a clear, unambiguous and unqualified principle to a Bill. In such circumstances that is often stated. However, it will be appreciated that there are circumstances in which Bills are not susceptible to being encapsulated in a simple provision of principle from which all else flows. I must say that in recent times, looking at draft legislation, it has seemed to me that far from clarifying matters, to have attempted to introduce a statement of principle might have made it much more difficult for the future user of the legislation to understand what was at the centre of it.
My noble friend Lord Renton indicated that more time for the preparation of Bills —perhaps a period of two years—might be desirable. As a drafting prescription clearly that has its attractions and I have no doubt that those draftsmen for whom I have a responsibility would be delighted if they were in a position to spread their preparation over a two-year period. However, if one considers the parliamentary timetable to which we work it might be extremely difficult for a draftsman, who, as will be appreciated, has duties attending committees of both Houses as legislation is considered, if he had his time taken up doing that at the same time as he was trying to consider legislation for about a year in advance.
Clearly, if there can be early preparation of Bills, that is very desirable. I can certainly think of one set of circumstances where that is achieved; namely, where the Law Commission has come forward with a proposal and attached to it a draft Bill. That certainly gives government and the draftsmen an opportunity to see whether there are points of drafting detail on which they believe they could improve the original proposal emanating from the Law Commission.
The noble Lord, Lord Harris, robustly suggested that we ought to look more frequently at repealing as a remedy for what is contained in the statute book. Having mentioned the Law Commission, I point out that that has been part of its work for 25 years. While there may yet be a number of provisions, as the noble Lord suggested, which might reasonably be withdrawn from the statute book, it would be appropriate to pay tribute to the Law Commission for what it has come forward with in suggesting repeals of obsolete and unnecessary legislation.
My noble friend Lord Renton suggested that one way in which we might improve legislation and reduce its content and length, as I understood it, would be to get rid of those provisions on which the consent of the Treasury is required. b can only say to my noble friend that I will undertake to draw his remarks to the attention of the Chancellor of the Exchequer. However, the extent to which he will view that recommendation with enthusiasm is a matter he will have to check out for himself on some future occasion.
406 My noble friend also put forward a criticism that the attempts to try to cover all hypothetical circumstances is a temptation that ought to be resisted as much as possible. I have to say that where possible the temptation is resisted, but there are undoubtedly circumstances —I am sure he can think of them —where what was thought to be hypothetical when it passed through Parliament, when it came round to the time of enacting the legislation was found to be a useful provision.
The noble Earl, Lord Russell, set out in a constructive way a number of proposals for looking at the way enabling legislation might be approached. This is not a matter that has come up recently; indeed, consideration was given to it in the report to which he referred. One of the matters he put forward demonstrates the difficulty. He said that one circumstance where he would be prepared to contemplate enabling legislation was where rules might need to be adjusted from time to time; where there was a requirement for flexibility. I have to say that just yesterday, as I was introducing the Law Reform (Miscellaneous Provisions) (Scotland) Bill, we set out to allow just such an enabling provision to enable a code of conduct to be introduced by secondary legislation. It was seen that the conduct that might need to be regulated would change from time to time. There was a requirement for flexibility. That was exactly the argument which I put forward and which found particular favour in this House while that provision was being considered.
As I indicated, a considerable number of points have been put to me. I trust that I have answered most of them. There is in no sense an attitude of complacency on the part of the Government regarding the quality of legislation. As I said, what occasionally happens is that when criticism is made of the drafting of Bills it is not criticism of the way in which the policy is being expressed but of the policy itself. I appreciate how strongly those who have contributed to this debate feel about maintaining the quality of Bills. Within about a fortnight I anticipate that we shall have something like a re-run of a number of the arguments that have been rehearsed this evening. On that later occasion there will be additional matters to be considered.
§ Lord Ponsonby of Shulbrede
My Lords, perhaps I may make a point before the noble and learned Lord sits down. He said that a great deal of the criticism made of particular Bills was because people were not very keen on the Bills themselves. That does not explain the situation where the Government themselves introduce very many amendments to their own Bills.
§ Lord Fraser of Carmyllie
It is an interesting paradox which the noble Lord may wish to consider. If we were to introduce Bills that were absolutely flawless and we were confident in every respect that we had constructed legislation which was seamless in every possible way, the obvious flexibility and tolerance which have been exhibited on this side of the House so frequently of late as regards amendments would be much less forthcoming.
§ Lord Simon of Glaisdale
I am sorry to prevent the noble and learned Lord finally settling down, but I wonder whether he would be good enough to answer the last question that I asked. Is there any machinery by way of standing instructions to alert the Law Officers to some questionable aspect of a piece of legislation?
§ Lord Fraser of Carmyllie
I thought I had indicated that in what I said. Law Officers are members of the legislation committee. Before any Bill is considered by the committee it is circulated to the Law Officers. If they have any comment on or criticism of the legislation, that opportunity is frequently extended to them before the committee sits and at the meeting of the committee. It is very much for the Law Officers and members of their departments to assist and advise and to take up what they consider to be objectionable items of legislation.
§ House adjourned at three minutes past ten o'clock.