Courts and Legal Services Bill [H.L.] (Hansard, 24 October 1990)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that the' Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Lord Chancellor.)

§ Lord Mishcon
My Lords, I rise with considerable sorrow and only a modicum of anger in regard to this Bill and the way in which this House is asked to consider 300 or so amendments from another place. I find it very easy to be angry with the Government and extremely difficult to be angry with the noble and learned Lord the Lord Chancellor. Indeed, from my point of view as well, I hope, as from that of your Lordships he is the object of sympathy. It is an impossible situation in which this House has been placed.
I do not know to what hour we shall sit but we have here one of the greatest reforms, whether we like the measures or whether we do not, to be made in our courts and the legal profession. I appreciate that there are undertakings which have to be observed and which the noble and learned Lord has observed with regard to the proceedings before your Lordships' House to see that certain amendments were effected in the other place. However, it is impossible for your Lordships' House and for the reputation of your Lordships' House to deal with important legislation of this kind in this way. I can only conclude that there is something rotten in the state—and it is not Denmark.

§ Lord Simon of Glaisdale
My Lords, I am very glad that the noble Lord, Lord Mishcon, has raised the matter, and in such a cogent way. Many of the amendments are welcome. Indeed many are in response to points made in your Lordships' House when the Bill was before your Lordships. But it is, first, the sheer bulk of the amendments which is questionable. Secondly, the problem is compounded by continuation of a style of drafting which stands in defiance of the recommendations of the Renton Committee on Preparation of Legislation. Thirdly, in this respect the Bill does not stand alone; nor does this year stand alone. Your Lordships returned one week before the other place resumed. We had to deal with three important Bills and a great mass of other legislation. The notice of business warned almost every day, The House may sit late or very late". "Late" means after 10.30; "very late" means after midnight; and so it has been.
This situation is an annual performance. Last year it occurred during debate on the Children Bill when the noble Lord, Lord Cledwyn, made a notable contribution. Then the Commons amendments—almost all government amendments, like these—exceeded in length the Bill that was sent by your 1339 Lordships. This year the position is almost as bad. The Bill runs to 130 pages; the Commons amendments run to 99 pages.
It is almost an annual event. Your Lordships are fortunate in having leaders whom we hold in high respect. When we are assured annually that this situation will not recur, we listen readily. However, unfortunately it does recur. It recurs every year except when legislative decks have to be cleared to allow for a possible general election. I do not know how the next Session will stand in that respect. This year has been very bad.
I have referred to the style of drafting. The Renton Committee had a very important memorandum from the then Lord President of the Court of Session, the Lord Justice Clerk, my noble and learned friend Lord Emslie, and the late Lord Wheatley. They stated that if one tries to cover in a Bill every detail that can be envisaged one is sure to miss some important points and the courts will then be left in great difficulty. They continued, "We, the courts, are used to applying general rules to specific situations. If we were given general rules to apply it would be very much easier". That recommendation was endorsed by the Renton Committee but has been totally disregarded.
That memorandum has not only been disregarded in this Bill. Last year we debated the Children Bill where Commons amendments sponsored by the Government ran to more pages than the Bill. But the matter did not rest there. By the time the present Bill was pat forward it was discovered that more amendments were needed to the Children Bill. A long schedule, Schedule 12, made further amendments. The matter did not rest there. Another four and a half pages of amendments have been made in the Commons to Schedule 12 to this Bill, amending the Children Bill.
I venture therefore to ask this question. What will be done to relieve the burden of legislation on Parliament and in particular on your Lordships' House in the autumn? What will be done to ensure that the drafting is more in accordance with what was recommended by the Renton Committee?

§ Lord Renton
My Lords, I have nothing to add to what the noble and learned Lord said about the method and style of drafting. However, it is only right to place on record that nearly all of the Commons amendments result from criticisms and representations made by your Lordships when the Bill was before us and further representations made in another place. The Government were very responsive to the representations made in another place. However much one may regret the style of drafting and the mass of amendments to be considered, it is only fair to record on behalf of my noble and learned friend the Lord Chancellor and others in the Government who have co-operated with him that in substance we shall welcome nearly all the amendments. The amendments to the amendments are of a very limited character, which shows that for the most part we should be able to welcome them.

§ Lord Hutchinson of Lullington
My Lords, from these Benches I support what the noble Lord, Lord Mishcon, said by way of protest. In referring to what the noble Lord, Lord Renton, said, it is only right that one should point out that throughout the proceedings in this House protests were made from all sides as to the scope of the Bill. It was argued that Part I should have formed part of a quite different Bill and should not have been included in the current Bill.
I note that more than 90 amendments refer to Part II of the Bill. I am sure that the noble and learned Lord will agree that because of the extraordinary complexity and bureaucratic nature of the mechanism which has been set up in the Bill to govern the supply of legal services, this enormous number of amendments was absolutely inevitable from the beginning. To that extent, although we are grateful for the changes that have been made, it must be said that the Government have brought this situation upon themselves.

§ Lord Harmar-Nicholls
My Lords, I am surprised at the reaction of the noble Lord, Lord Mishcon. Despite the number of amendments involved, is he suggesting that the other place is not entitled to do what it considers right to legislation that is published in its name as well as ours? To object to the length of time involved in doing what is right is splitting hairs in a way that is not helpful to general procedures.

§ Lord Belstead
My Lords, on behalf of the Government I agree with the noble Lord, Lord Mishcon, that the Marshalled List to be considered by your Lordships' House is a weighty document. If the House sits particularly late, I shall regret that as much as anybody. However, with respect to the noble Lord, I disagree that there is, as he said, something rotten in the state of Denmark. My noble friend Lord Renton put his finger on the point. Many of the amendments to be considered today by your Lordships are in response to points that were made in your Lordships' House. Quite rightly, your Lordships would be the first to point out if the Government had not endeavoured so to respond.
I am sure that the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Hutchinson of Lullington, will forgive me if I do not follow them down the roads of discussion about parliamentary drafting or the scope of the Bill, enormously important and relevant though both subjects are.
I wish to make two quick points. This is not a Bill which has just arrived from the Commons. Your Lordships have had time to think about what the Commons has done because the Bill left there at the end of July. Secondly, realising the weight upon your Lordships' House, my noble and learned friend characteristically sent out a massive briefing on a personal basis to all noble Lords who have been involved in the Bill.