§ 3.8 p.m.
§ Lord Nathan rose to call attention to the Hansard Society report on the legislative process, and in particular to consultation on and preparation of legislation, its passage through the House of Lords, and to the lapse of time between the passage of legislation and its implementation; and to move for Papers.
§ The noble Lord said: My Lords, the debate arises from luck in the Ballot. I am especially glad that it has, because I have witnessed with increasing concern the fall in Parliament's public esteem in recent times. I put down the Motion relating to the processes of legislation not because I have any deep knowledge of the subject upon which so many of your Lordships have great experience, but because of that concern which is, I believe, shared widely.
§ Worries about the volume and quality of legislation and the processes and procedures by which it enters the statute book are of long standing. The committee under the noble Lord, Lord Renton, examined them and made recommendations in a report published in 1975, but little was done. I am delighted to see him now recovered from some serious ill health, and taking part in the debate. That report was followed of course by the Hansard Society's report of a major investigation by a commission chaired by the noble Lord, Lord Rippon, which was published in 1992. I should like to express my great sorrow that due to his ill health, as he informed me, he is unable, as he would have wished, to take part in the debate.
§ Our most ancient institutions, which are deeply embedded in our history and culture, are under close scrutiny and attack. That is not surprising, in view of the fundamental changes during the last 40 years or so in cultural, social and political attitudes and modes of thought; a greater change in so short a period, it has been said, than in any other period in history.
§ My purpose in putting down this Motion for debate is to consider the broad issues in the hope that they will not be confined to your Lordships' House but will extend into wide public discussion. In view of the large number of speakers on the list today, I shall confine myself to two issues. The first is the involvement of the public in the law-making process by pre-legislative consultation. The second is the development of law, which is not mandatory on government but permissive, by the use of commencement provisions exercisable without limit of time. These derogate from the authority of Parliament, whose prime function is to make law.
As the Hansard Society emphasised in its report,
All the processes by which statute law is made and published should be governed by the needs of users and not by the needs of those who pass legislation".
It follows that involvement of the public in consultation prior to the introduction of legislation is a key requirement. Increasingly, the interest and energy of those active in matters of public concern confine their talents to support single issues by participating in pressure groups and campaigns. Consultation engages them in the processes of legislation. Furthermore, their expertise will help to formulate good law which will
work effectively. A good example of success is the Human Fertilisation and Embryology Act 1990—a subject of great difficulty—which was enacted after extensive public consultation.
§ There are many means for such consultation. The most formal is by a Royal Commission. I had the privilege of serving on the Royal Commission on Environmental Pollution for some 10 years. Part VI of the Environmental Protection Act 1990, which relates to genetically modified organisms, did not give rise to the controversy which might have been expected because, I believe, of the Royal Commission's report on the subject and the related consultation. Public disquiet could have stultified all activity in genetic engineering. I suggest that the more extensive use of Royal Commissions and departmental and inter-departmental inquiries should be promoted.
§ The less formal consultations on the environment agency legislation—that is now Part I of the Environment Bill—and the publication of draft clauses as well as the willingness of the department to discuss them are further examples of how these matters should be dealt with. The Second Reading of the Bill, which takes place tomorrow, will demonstrate whether that is so.
§ There are, alas, all too many instances of bad legislation. Bad legislation diminishes Parliament and alienates the public. An example is the provision of the Criminal Justice Act 1991 substituting a predefined penalty for discretion of the court. These provisions, which were central to the policy of the Act, proved unworkable and generated such strong public hostility as to require repeal within seven months of introduction. The Child Support Act 1991 generated serious hardship when applied and public hostility resulted in the changes announced in December 1993. Certain provisions in the legislation relating to football stadiums had to be withdrawn—more accurately, not brought into force and abandoned—within two months of Royal Assent.
§ It is a matter of some anxiety as to whether cuts in the Civil Service have given rise to these errors and whether the cuts presently in view will have an adverse effect on the quality of advice given to Ministers and the quality of legislation. Will the noble Viscount the Leader of the House comment on this in his reply? The statute book is littered with abandoned legislation which should be repealed. It has been suggested that such legislation should be retained in case it is required at some unknown future date. If it is required later it should be reintroduced.
§ I turn to commencement orders, which are now found in most Acts, by exercise of which alone their provisions or any of them are brought into force. There is normally no time limit within which an order must be made and, therefore, a provision may never come into force. Legislation is thus now not mandatory on government but permissive. For instance, after long and exhaustive debate, Section 143 of the Environmental Protection Act 1990 and associated sections relating to contaminated land were enacted. Now, nearly five years later, they have not been brought into force. The Government have 1293 decided to abandon them and to start afresh, as they have done in the Environment Bill the Second Reading of which is to take place tomorrow.
§ I am told that we coined the expression "optional legislation" in the 10th report (1984) of the Royal Commission on Environmental Pollution in the context of delays—which at that time ran for some 10 years—in bringing into force Part II of the Control of Pollution Act 1974, which was central to the purpose of the Act. We used it to describe the practice by which the unfettered discretion of Ministers over the commencement of key provisions of an Act was used effectively to frustrate Parliament's intentions in enacting the Act.
§ Various suggestions have been made to limit the period during which a commencement order can be made. It could be provided that the provisions of an Act shall come into force a specified time after Royal Assent unless previously brought into force by order. That was suggested in the 12th report (1993–94) of the Delegated Powers Scrutiny Committee. Alternatively, it could be provided that the provisions of an Act shall lapse if not brought into force by order within a specified time. That is favoured in Australia and is to be found in its legislation; for instance, the Fisheries Legislation (Consequential Provisions) Act 1991. In Australia it seems to be recognised that the Administration should not include provisions in Bills which cannot commence within a reasonable time and that existing provisions which have not been brought into force for years should be repealed.
§ In the Memorandum from the Chairman of Committees to the Select Committee on Procedure of the House, dated 1st December 1994, the idea was canvassed that the Government should report to the House from time to time what legislation has yet to be brought into force, giving reasons for delay and an indication of the Government's intentions. This will not do. The present parlous situation, whereby the authority of Parliament has been undermined, would continue.
Your Lordships may well ask what provisions in recent Acts remain to be brought into force under orders of this kind. So I asked the Government about Acts passed between 1989 and 1992. (I gave the noble and learned Lord the Lord Chancellor notice that I intended to refer to this matter today). He replied in writing stating:
It is not possible other than at disproportionate cost to identify specific provisions of Public General Acts enacted, with commencement provisions, between 1st January 1989 and 31st December 1992 which have not yet been brought into force. However the percentage of such provisions not yet in force is, I believe, around 1 per cent.".
§ The point is, which 1 per cent.? It is very odd and worrying that government cannot find the answer—and nor, therefore, the public without disproportionate cost. Will the database, on which I believe the Lord Chancellor's Department is working, help and, if so, when can we expect that to mature?1294
§ I was prompted to put down this Motion for debate because of my concern that Parliament should remain the bulwark of freedom and the source of sound law on which that freedom rests. My Lords, I beg to move for Papers.
§ 3.20 p.m.
§ Lord Howe of Aberavon
My Lords, I begin by congratulating the noble Lord, Lord Nathan, on the wisdom of his choice of Motion and echo the therapeutic comments with which he commenced his speech to my noble friends Lord Rippon and Lord Renton, whom I welcome back to the Chamber.
I congratulate them also on the near unanimity of their insight into those problems, expressed over the ages in different words. First, there is no doubt that this is a problem of great seriousness. Secondly, it is a problem of very long-standing. It was Tacitus who said, "Whereas formerly we suffered from crimes, now we suffer from laws". It is a problem which has provoked some fairly eccentric solutions. It was Swift in Brobdingnag who said that in that kingdom no laws must exceed in words the number of letters in their alphabet; that few of them extend even to that length; and that to write a comment on any law was a capital crime. I am not sure that that made much difference.
The third point on which there is unanimity is about the essential requirements of reform. First, there should be better management of the legislative programme by government. The noble Lord, Lord Nathan, gave examples of what I came to describe as policy-making on the hoof, which even during my brief time as Leader of the House of Commons I was not able to check beyond a very modest degree. We need much better management of the legislative programme.
Secondly, more resources are needed for the drafting of legislation. That has often been said but has never been resolved. We need more resources which are better deployed, with time to plan the work; time to think about the process; time to consult colleagues in Commonwealth countries and time to catch up with themselves instead of having to handle reforms in the spillover period when work should be done on the next round of Bills; and time to look at the question of reform.
Thirdly, we need better and more innovative and imaginative management of legislative procedures. All the right proposals are set out in a sequence of reports: timetabling, Select Committees rather than Standing Committees and so on.
Fourthly, we need more time and resources for the preparation of policy and, above all, as the noble Lord said, for consultation, for draft clauses, for Green Papers, for Royal Commissions and so on.
As I say, there has long been unanimity on most of those practical points. Most of the texts of the reports consist of repeating and amplifying the recommendations of their predecessors. But I plead guilty to two aspects of that continuing debate. First, I plead guilty to recurrent bouts of reforming lust. I have long been dismayed and anxious about the way in which we do those things.
1295 Secondly, I plead guilty to inability to satisfy that reforming lust to any significant extent. I am never sure which side, in the end, I shall be judged to have been on. I am delighted to see my noble friend Lord Can of Hadley in his place because he will recall that, before the election of the government in which we both served under the premiership of my right honourable friend Sir Edward Heath, we were both most concerned with regard to the simplicity of the legislation that we were to produce in the shape of the Industrial Relations Act. We arrived in office full of zeal and enthusiasm and, indeed, full of draft clauses and of a draft redraft of the section of the then Labour Government's Bill which had only just been brought before Parliament, and simplicity was our message, endorsed specifically by the Prime Minister of the day with enthusiasm. And simplicity, I fear, we did not deliver. I am not now going to analyse that story because the reasons for it are set out in the many reports which we have before us.
In my humble role as Solicitor-General at that time, I played some part as one of the midwives to the appointment of the Renton Committee, which reported in 1975 again with many of the right solutions. Then, after a further period in Opposition, under the leadership of my noble friend Lady Thatcher I delivered in 1977 a speech to the Addington Society about the right way in which to prepare fiscal legislation, which was full of wisdom, as one always is in Opposition. I delivered a longer speech to the Society of Conservative Lawyers entitled "Too Much Law?", with a cautionary question mark at the end of it. Once again, those words of wisdom were endorsed enthusiastically by the then Leader of the Opposition, my noble friend Lady Thatcher.
Alas, alack, in our last three years together in Government, the Government of whom my noble friend and I were both members found themselves enacting on average three times more pages of legislation each year than in the last three years of the Labour Government whom we had replaced. So much for one's aspirations.
I claim some achievements but not many. First, during my time as Chancellor of the Exchequer, I believe that I was able to introduce a much wider pattern of consultation on fiscal legislation. I was glad to see that one of those most interested in this subject, Mr. Malcolm Gammie, said that it was clear that the development of pre-legislative consultation since my 1977 speech had:significantly altered the landscape against which we must judge the fiscal process in the United Kingdom".So far so good.
Secondly, I played a modest part in relation to the embryology Bill which the noble Lord, Lord Nathan, mentioned, because in the Commons stages of that, we were able to timetable the decisive stages; to offer the House rational choices; and to proceed with a programmed debate.
Therefore, everyone knows what needs to be done and occasionally it can be done. But for the most part our achievements are achievements of extreme modesty. 1296 Why is that so? Why is it that recommendations which are so unanimously endorsed have so little done about them, and what, if anything, are we to do about it?
I believe that the attempts that have been made by successive governments to give responsibility for that task to this or that Minister or department, be it the Attorney-General, the Lord Chancellor, the Prime Minister or, heaven forbid, the usual channels or the Leader of either House, all run into the sand because in the hands of any one of those individuals they find themselves competing with the selfish departmental interest of those individuals themselves or the shortage of resources of those individuals. Sometimes they find themselves literally competing with conflicting departmental interests. And, above all, the usual channels normally have no enthusiasm for innovations in the legislative process.
Most serious of all, nobody is charged with the centrally important task of continuous sole responsibility for the management of the legislative reform process. It is never in the hands of any one individual, and that must be the answer. I offer one piece of encouraging experience in that respect in relation to the reforms in management of both Houses separately and in relation to each other that have taken place in the past four years. Those resulted very largely from the recommendations of the Ibbs Committee which was appointed and reported and whose recommendations were adopted during my 15 months as Leader of the House of Commons. Those recommendations have been put into place in the past four years and have transformed the effectiveness and administration of both Houses in relation to each other.
That did not happen because of my personal commitment but because politicians in both Houses were ready to be mobilised to do something about the problem. The House of Commons Commission, under the leadership of my noble friend Lord Weatherill, was able to dynamise the House of Commons in that respect. Leaders of both parties in both Houses also did the same. Above all, the task of defining the process of reform was in the hands of Sir Robin Ibbs who, with enthusiasm and gusto, started and finished it within a measurable timescale. For that to happen, political commitment is vital and it is not sufficient to identify just one Minister. The Government must identify an official with that responsibility, sufficiently equipped to follow it through from day to day, from month to month and from week to week. That is a task of supreme importance for the administration or even creation of law in this country.
One last point: I am delighted that the noble Lord, Lord Lester, is to speak in the debate because very recently he produced another Hansard Society report entitled What Price Hansard? That is another topic—the absurd prices now being charged, perhaps even as a consequence of some of the policies which I initiated as Chancellor of the Exchequer, for Hansard and for Bills to be available to the public. We need to do something about that.
Again, that is a task which can be tackled by ourselves. If the House of Commons Commission proceeds to enlarge its expenditure, as it is able to do— 1297 and, indeed, as I found it was when I was Chancellor of the Exchequer and tried to stop it from so doing—and if it is willing to do so with the co-operation of this House, then at least the two Houses together, regardless of what Her Majesty's Government may say, can tackle that aspect of the problem. However, far be it from me to foster revolutionary thoughts of that kind.
I close with a simple, single message, quoting from my 1977 speech:It is the politician who must bear the responsibility for changing the system, whether as Ministers or parliamentarians. It is we who are in charge. Only we can change the system".
§ 3.30 p.m.
§ Baroness David
My Lords, I am glad that the noble Lord, Lord Nathan, has given us the opportunity to discuss the Hansard Society report today, particularly as I was unable to speak on 2nd November in the debate on the report on the sittings of the House. I believe that a letter from me to the Procedure Committee, expressing my outrage at the repeated late night-early morning sittings during the passage of the 1992 Education Bill, was one of the triggers that encouraged the setting up of that committee, and so I am anxious to comment.
I presume that we all start from the premise that legislation and the business of the House could be better organised. There is general agreement that Bills are produced in too much of a hurry without enough consultation with interested people and organisations, the parliamentary counsel and the civil servants who have the job of preparing the Bills. I thought that the evidence from the FDA report was very illuminating.
The gestation period for a Bill is, or should be, very long. Although I cannot agree that a Bill, once introduced, should be carried over into a second Session, there should be the proposal for a Bill, perhaps with a Green Paper and a White Paper for comment, at least a year before First Reading. Consultation in that way should mean a smoother and faster passage for the Bill.
A prime example of a Bill where there was no consultation was the students' union and teacher training agency Bill which was brought forward last Session. Not even those on the Government's own Benches, who were really well informed, had been listened to. It was, in the end, they who brought pressure to bear on Ministers which meant major changes to the Bill and a very long gap between Second Reading and the Committee stage while the government amendments were created. It is ironic that, according to the CVCP, the Government could have made any changes that they wanted without any legislation at all.
Another excellent example is the Education Reform Act 1988 in which I was heavily involved. It was a major measure. There was no White Paper. Short, consultative documents were published in haste in July and August 1987, allowing from five to 11 weeks for replies. That was over the period of the school summer holidays. No analysis of the responses was published. LEAs were at no point involved in consultative discussions. It is not surprising that many measures in the Bill, pushed through against strong and reasoned opposition, have had to be changed—the national curriculum and testing being prime examples.
1298 In that respect, Recommendation 71 of the report which says that:The operation of every major Act … and all the delegated legislation made under it, should be reviewed some two or three years after it comes into force",seems very apt. Such a review might prove very salutary for a government that has rushed through Bills with indecent haste.
I support strongly the proposal that after Second Reading there should be a meeting of Ministers, Front Bench Opposition spokesmen, civil servants, a few interested Peers and some organisations which are highly involved and affected by the Bill. Evidence could be called. After Second Reading seems the right time, as it is then that anxieties and, perhaps, misunderstandings about the Bill are aired. There might well need to be a slightly longer gap between Second Reading and the Committee stage than the statutory two weeks.
The report tells us that the Australian Senate and the Canadian House of Commons have those meetings and that they work well. In her 2nd November speech, the noble Baroness, Lady Faithfull, pointed out how profitable such meetings that she arranged had been as regards the Children Bill. I agree with the noble Baroness; I was there. Similarly, the noble Baroness, Lady Blatch, arranged meetings on the code of practice for children with special educational needs in the 1993 Bill. That was very enlightening and helpful.
I was impressed by the evidence given by the noble Lord, Lord Aberdare, in the report. He has immense experience. He advocated the meeting after Second Reading that I have just been applauding. I urge the Government to pay heed to all his written evidence in M1 and M2 on page 153 of the report, where noble Lord's ideas seem to me to be extremely constructive and practicable.
What has been said about primary legislation goes also for delegated legislation—consultation at the formative stage with appropriate experts and affected bodies. Greater openness is called for, and that is a recommendation for all legislation. As Recommendation 35 says:Some means should be found of informing the citizen, his lawyers and the courts of the intention underlying the words of the statute".Recommendation 94 says:The Government should do all … [in its power] to explain new law to the public, and especially those most affected, in terms that are readily intelligible".Going along with that, the Government should enable HMSO to price their publications, and especially Acts and statutory instruments, at well below cost. I am glad that the noble and learned Lord, Lord Howe, referred to the price of Hansard in that respect. Open government has been promised by the Prime Minister. Well, let there be a start here.
There are interesting discussions in the report on European legislation that affects us. I applaud the suggestion that the powers and resources of the Delegated Powers Scrutiny Committee should be enlarged to enable it to detect potential legislative conflicts with the European Convention on Human Rights and, again, for it to detect prima facie conflict 1299 between provisions in proposed legislation and the requirements of European Community law. That seems to me to be necessary.
I do not think that there is enough acknowledgment of the excellent work and reports of our European Select Committee. But the proposal (and this is already happening) that the Lords, through Select Committees, should look at matters more peripheral to current legislation, though clearly relevant in the long term—for example, questions such as those of civil rights, of central local government relations or of the environmental impact of legislation—seems to me to be totally acceptable.
I am sure we all agree that Law Commission Bills, many already drafted, should be sent to Standing Committees off the Floor of the House and that other Bills of a non-controversial nature could be treated in that way too.
We conduct ourselves in a very strange and erratic way. So I hope that many of the proposals in the report can be embraced by the House. I am very glad that the noble Lord has given us the opportunity to express our views.
§ 3.37 p.m.
§ Lord Lester of Herne Hill
My Lords, the Hansard Society and the Commission of the noble Lord, Lord Rippon of Hexham, are to be congratulated. Their comprehensive report contains enlightened, practical and much-needed proposals to improve the way that we make law and understand law. The noble Lord, Lord Nathan, deserves our gratitude for having initiated a debate on a brilliantly informative, critical and constructive report on a subject which affects the quality of law making and the citizen's access to the processes of law making and to the law itself.
As other noble Lords have already indicated, I am very sorry that the noble Lord, Lord Rippon, is prevented from being here today because of ill health. Let us hope that the work of the commission, so skilfully chaired by the noble Lord, will not suffer the fate of so many previous reports on the legislative process, including the admirable report 20 years ago of the noble Lord, Lord Renton, of being debated solemnly and seriously and then quietly relegated to gather dust on library shelves.
The five central principles which have guided and governed the Rippon Commission's recommendations need to be engraved in bold letters on the pillars of the Palace of Westminster and on the doors of every government department. They also need to be fully heeded by Ministers, civil servants and ourselves as parliamentarians. Perhaps I may remind your Lordships of those five principles.
First, laws are made for the benefit of the citizens of the state. All citizens directly affected should be involved as fully and openly as possible in the processes by which statute law is prepared. Secondly, statute law should be as certain as possible and as intelligible and clear as possible for the benefit of the citizens to whom it applies. Thirdly, statute law must be rooted in the authority of Parliament and thoroughly exposed to open 1300 democratic scrutiny by the representatives of the people in Parliament. Fourthly, ignorance of the law is no excuse. Therefore the current statute law must be as accessible as possible to all who need to know it. Fifthly, the Government need to be able to secure the passage of their legislation, but to get the law right and intelligible for the benefit of citizens is as important as to get it passed quickly. That was a point underlined by the noble and learned Lord, Lord Howe of Aberavon, resisting the making of policy on the hoof in mitigation of his own reforming zeal and lust—a zeal and lust that I share but not always in exactly the same direction.
Year after year the volume of legislation continues to increase at a chokingly high rate, as does its quite bewildering complexity. This makes it essential for the legislative process to conform to democratic ideals, producing well conceived, well drafted and accessible legislation, with as much consultation of affected parties and relevant experts as is reasonably practicable. As the Rippon Report clearly demonstrates, successive governments of whatever colour and successive Parliaments have paid lip service to these ideals without adopting effective measures to implement them.
I shall just deal briefly with two or three of the many topics raised by the report. The commission is surely right to recommend, and the noble Lord, Lord Nathan, and the noble Baroness, Lady David, to emphasise, that the Government should always seek the fullest advice from those affected on the problems of implementing and enforcing proposed legislation. The Rippon Commission concluded that the overwhelming impression from the evidence is deep dissatisfaction. The commission emphasised the importance of timing.
The bodies consulted should be given all the relevant information in good time and, as the commission recommends, there is great benefit in publishing draft Bills for consultation. I also agree with its conclusion that bodies invited to the consultative process should be given the necessary documents free of charge.
As regards commencement orders, I simply wish to register my complete agreement with the powerful observations of the noble Lord, Lord Nathan, on that subject. The failure to bring into force the criminal injuries compensation scheme in the 1988 Criminal Justice Act is simply one recent bad example of the vice.
On legislative drafting, I support all of the commission's recommendations for clarity, simplicity, brevity and the pursuit of the Holy Grail of certainty in the drafting of legislation; and for Ministers, civil servants and parliamentary counsel to do all they can to eliminate unnecessary and complicated detail in the Bills for which they are responsible.
There is too the important question of ministerial responsibility. I warmly welcome the proposal that responsibility for the work of the Parliamentary Counsel's Office and the oversight of drafting methods should be assigned to the Attorney-General. If only that had been the position in the mid-1970s when I was Special Adviser to the Home Secretary, my noble friend Lord Jenkins of Hillhead, we could have had readily intelligible, user-friendly legislation to deal with sex and race discrimination rather than the excessively detailed and technical Bills more suited to income tax legislation.
1301 Neither the Home Secretary nor the Attorney-General was able to persuade parliamentary counsel to redraft the key definition clause of what is meant by unlawful discrimination. I was told by the Attorney-General, Sam Silkin, that only the Prime Minister could do that. As a result, there have been years and years of costly litigation to clarify basic concepts that could have been dealt with at the drafting stage. I believe that overall responsibility has to lie with a legally qualified Minister and legal advisers. I also agree that parliamentary counsel should review their drafting styles and be willing to learn from best practice in other Commonwealth countries and, I dare say, Europe as well.
The other topic which has been touched on already by the noble and learned Lord, Lord Howe of Aberavon, is the price of government publications. The Rippon Commission received a number of complaints about over-pricing. Its own report, some 400 pages long, is modestly priced at £16 and it recommends that the Government should enable HMSO to price its legislative publications, Bills etc. at well below cost. I was stimulated by the Rippon Report to co-author another report for the Hansard Society entitled What Price Hansard? to look at the problem in greater depth. It is a problem worthy of an entire debate in its own right but I shall just briefly make a few points.
Hansard is quite absurdly overpriced at £11.70 a day for the combined work of both Houses. It is beyond the reach of any but the wealthiest citizens and institutions to buy on a regular basis. The price is seven times what Germans pay, seven times what the Americans pay, 14 times what Australians pay, eight times what Canadians pay, and eight times what the French pay for comparable reports.
Parliament needs to decide to disseminate the Official Reports of our debates as widely as possible. We really need to adopt effective measures to achieve that aim. Public ignorance about what is said and done in Parliament is inimical to good and democratically accountable government. Public ignorance about the law is no excuse for law breaking, but makes it essential for Parliament to ensure that there is a right of access to legislative material at marginal cost. The need for accessible material is especially important now that our courts look at parliamentary debates and other background parliamentary material—post Pepper v. Hart—where the legislative text is unsatisfactory because of either a lack of clarity or some apparent absurdity.
I suggest that it is quite inappropriate that HMSO, the office which deals primarily with Crown and parliamentary copyright, should also administer the copyright on parliamentary publications which, for purposes of democratic dissemination of information, should be treated much less restrictively, whether for printed material or for CD-ROM material. I strongly endorse the Rippon Commission's recommendation that everything possible should be done to make our law and the legislative process as freely accessible as possible to all citizens.
1302 The central problem is that HMSO is obliged to operate according to purely commercial factors. I suggest it is inappropriate that public documents, including the records of the workings of Parliament and its laws, are treated simply as commercial products. I do not believe that Hansard, Bills, statutory instruments or Acts are commodities whose general availability should be determined by the kind of commercial considerations dictated by HMSO. I suggest that Parliament should undertake, as part of its democratic function as the fount of public information, to deal with this problem as a matter of urgency.
The commission's proposals are well designed to strengthen parliamentary democracy and the rule of law, modernising our outmoded and inefficient law-making processes. The question is not whether these reforms are needed. They clearly are. The real question is how government and Parliament can be persuaded to give effect to them as a matter of urgency and high priority, and beginning, as the noble and learned Lord, Lord Howe of Aberavon, has, I think, indicated, now in this parliamentary Session.
§ 3.48 p.m.
§ Lord Simon of Glaisdale
My Lords, I presume to follow the previous speakers in paying tribute to the noble Lord, Lord Nathan, on his excellent speech introducing this important document for the consideration of your Lordships. I also congratulate the Hansard Society on having established such a powerful committee, and that committee on having produced such a circumspect and complete view of the legislative process. In particular it not only describes that process but shows how it could be improved. I hope that we shall hear today how far the Government are accepting the specific recommendations.
I presume also to agree with practically everything that has been said so far, in particular about commencement orders. I shall be very surprised if I do not agree with what is to be said hereafter if noble Lords run true to their usual debating form.
I wish to touch on only two aspects of the report. The first concerns what was said about the drafting of legislation. I agree with what has been said so far in the debate, but it is not only the volume of legislation which has increased so dramatically but also the length of particular measures. Statistics have been quoted on a number of occasions and I shall not repeat them.
The Renton Committee recommended, in pursuance of an important memorandum by the senior Scottish judges, that drafting should generally take the form of laying down general rules instead of trying to cover every situation which might be envisaged, as a result of which, in the nature of things, important considerations will be missed.
In a recent debate I quoted from that memorandum and from the Renton Committee's endorsement of it. I repeated that in a letter to the noble Viscount the Leader of the House. I am sorry to say that the reply was all too predictable and it was all too clear who had drafted the reply. It quoted another passage from the Renton Report emphasising the supreme importance of certainty. However, those are not by any means 1303 mutually exclusive. They would not both have been quoted by the Renton Committee if that had been so. A general rule can be certain. Lawyers among your Lordships will remember the famous rule in Ryland v. Fletcher, which was extremely fruitful in its repercussions and stated with admirable certainty. At present we do not have certainty simply because one or two of the individual situations will have been missed.
What is to be done? It is quite clear now, 20 years after the Renton Committee, that we shall not get any further unless the recommendation of the Hansard Society that the draftsmen should come under the Attorney-General is accepted. It is not the first time that that has been recommended. The Government themselves appointed Sir Robert Andrew, a most distinguished retired civil servant, to advise on the government legal services. He recommended that the draftsmen should come under the Attorney-General. Of all Sir Robert's recommendations that was the one that was not accepted. It is not difficult for anybody who knows Whitehall to envisage the machinations and manoeuvres which went on to defeat that proposal. I know that the noble Lord, Lord Renton, takes the same view about the desirability of the draftsmen coming under the law officer's jurisdiction.
That is the first point, and I hope that the noble Viscount will deal with it specifically.
The second point is a more difficult matter. It is referred to in passing by the Hansard Society; namely, that drafting would be much improved if we reverted to the old role of the legislation committee of the Cabinet. I am quite certain that we would never have had so disastrous a measure as the Child Support Act if that Bill had had to pass under the scrutiny of the legislation committee in its former role.
The last matter that I want to deal with is referred to in the terms of the Motion; namely, the role of your Lordships in the legislative process. That is increasingly important as the other place comes more and more under the domination of the Executive, and, dare I say, the political Executive comes increasingly under the influence of Whitehall. Therefore, your Lordships' role is ever more important.
On the other hand, we see increasing efforts to marginalise your Lordships' role in legislature. There was first the extraordinary invocation of the Parliament Act to pass the War Crimes Act. I believe that it is now generally accepted that that was a complete waste of money and time. However, nothing has been learnt from that. On the contrary, there have been successive attempts to arrange government business so that your Lordships cannot effectively debate amendments before a full House.
When the Courts and Legal Services Bill was before this House the only way to ensure that an important constitutional amendment was debated before a full House was to sacrifice every single preceding amendment on the Marshalled List. The amendment was then debated in the early evening and the Government were defeated. What is more, the Government accepted that defeat.
1304 Then there was the Child Support Act, which I have just mentioned. We sat late into the evening night after night. The shortcomings of that Bill were clearly identified in your Lordships' House but we were quite unable, as the debate was late at night and the business managers had their little posse outside, effectively to amend that measure, to the great distress and misery of thousands of our fellow citizens and to the great embarrassment of the Government.
The last example is the Criminal Justice and Public Order Bill of last session. An important amendment was introduced by the noble Lord, Lord Carr of Hadley, a former Home Secretary, supported by my noble friend Lord Allen of Abbeydale, a former Permanent Secretary at the Home Office, and by the noble Baroness, Lady Faithfull, who knows more about the impact of penal measures than anybody in the Home Office or in Whitehall, and perhaps more than anybody in the country. Although that amendment was carried and although it was by no means inimical to the policy of the Act, the Government used their majority in the other place to reject it. When it came back to your Lordships' House a number of what ornithologists call rare visitors were present who took no part in the debate and were obviously there for a political purpose.
I ask the noble Viscount to say that it is not part of the Government's policy to frustrate amendments by your Lordships' House where they seem desirable, in view of your Lordships' vast experience and depth of expertise.
§ 4 p.m.
§ Lord Aberdare
My Lords, I thank the noble Lord, Lord Nathan, for giving us the opportunity to debate the subject, although I greatly regret that my noble friend Lord Rippon is indisposed as his contribution would, I am sure, have been extremely valuable.
I have always had a great admiration for the Hansard Society and for the admirable papers that it produces from time to time. This is no exception. I congratulate my noble friend Lord Rippon and his colleagues on the report, which is full of good sense and easy to read. The value of the Hansard Society reports seems to me to be that a particular topic is studied in depth and proposals put forward that aim at ideal remedies. They may not be easily attainable but they set a target to which our efforts can be directed.
There can be no doubt that our legislative system at present is far from adequate. Bills are often not well drafted, the legislative process in both Houses is too long and increasingly dependent on statutory instruments, and often even the judges themselves have doubts about the interpretation of the Acts that we pass. That has resulted on all sides in a demand for less legislation. But, unfortunately, I think that that is very unlikely given the pace of modern life and the need for governments to act swiftly to meet the tide of events. In fact, I think that we are more likely to have to deal with more rather than less legislation in the future.
The report tackles the problem professionally and pragmatically. It contains recommendations on the preparation of legislation and the need for wider consultation with those people affected, the drafting of 1305 legislation, especially the need for clarity, simplicity, brevity and certainty, and the legislative process in Parliament.
Like all those who have spoken before me, I welcome the recommendations. However, there is no doubt that if they were all to be implemented, more time would be required for consultation, drafting and consideration in Parliament. I was particularly pleased that at the beginning of his admirable speech my noble and learned friend Lord Howe of Aberavon mentioned the word "time". I am sure that that factor is a major difficulty. The commission recognised that and faced the issue squarely with a recommendation for a two-year legislative programme. I believe that that really is the only solution. It may be a pipedream. It certainly will not be acceptable to Parliament at present. The government business managers, and I am sure any party's managers, would not welcome that change. However, I believe that it is an objective which we should keep within our sights even if it be on the far horizon. We should continually keep the recommendation in our minds and seek at least to work towards it. Perhaps it would be possible at some time to apply that recommendation to certain Bills somewhat on the pattern that occurs in private legislations.
However that may be, if we continue to work within the present one-year cycle, at least we can seek to achieve some of the other recommendations in the report. On 2nd November we debated the report of the group on the sittings of the House. I know that the Procedure Committee is likely to recommend that some of the proposals should be examined in an experiment.
I was flattered to note that the group referred to an idea of mine to which the noble Baroness, Lady David, was kind enough to give her support: that an unofficial group called together by the Minister should arrange an informal meeting with Opposition Front Bench speakers, interested Back-Bench Peers and representatives of outside interest groups to clarify the Government's intentions and to dispose of minor amendments, especially probing amendments, before the full Committee stage on the Floor of the House. We have to remember that we spend more of our time proportionately in Committee than on any other procedures of the House. Any time that we can save in Committee must be valuable.
On Monday I did a little personal research on the Committee stage of the Agricultural Tenancies Bill. To my surprise I found that there were quite a number of occasions when a preliminary meeting might have helped to save time on the Floor of the House. For example, the noble Lord, Lord Carter, on moving the first amendment said:The purpose of the first group of amendments is to discover what the Government intend by the phrase 'farm business tenancy'".That, I believe, could well have been explained at an unofficial meeting before the matter ever came to Committee stage. The Minister, my noble friend Lord Howe, said:I am grateful to the noble Lord. Perhaps I may clarify one or two further points".1306 Referring to Amendments Nos. 5 and 6 standing in his name, the noble Lord, Lord Stanley of Alderley, said:Their intention is to clarify the position".The noble Lord, Lord Carter, said:The discussion has been helpful; we now understand that the Government are anxious to promote diversification".—[Official Report, 12/12/94; cols. 1089–94.]There are a number of other examples which I do not have time to cite. The same was true of the Committee stage yesterday. I believe that quite a lot of time could have been saved if there had been discussions before Committee stage.
If, as I hope, this proposal is to be tried out, I wish to make three points. First, I would hope that notes on clauses would be available to the meeting. The Government have been very helpful in providing notes on clauses in the past. They are valuable; and I am sure that they would be valuable to such a meeting.
Secondly, I think it important that, quite apart from the Minister having his own officials present, there should also be present those experts who are advising the Opposition and other interested Peers, so that all those people can bring to the notice of the Government the basic facts of life as they view them with regard to the way in which the legislation is drafted at the time.
Thirdly, I hope that the Minister in the Chair would intervene strongly to prevent discussions going over into matters of policy, on which the final decision has obviously to be made in Committee.
I have mentioned the importance of notes on clauses. That leads me to refer to another recommendation of the commission at paragraphs 36 to 38. The report recommends that after the enactment of a statute, the relevant government department, with assistance from parliamentary counsel, should issue notes on sections based on the original notes on clauses but taking account of the further proceedings in Parliament. Those notes should be approved by Ministers and should be allowed to be used by the courts as an aid to their understanding of the intentions of the Act. I believe that that suggestion is well worth consideration.
In general I am fully in sympathy with the proposals in the report; and I am grateful to my noble friend Lord Rippon and his colleagues.
§ 4.9 p.m.
§ Lord Henderson of Brompton
My Lords, I am very glad to be able to follow the noble Lord, Lord Aberdare, because I particularly wish to refer to his proposal which has been adopted by the Hansard Society Commission. I thank my noble friend Lord Nathan for introducing the debate. Like other noble Lords, I regret that the noble Lord the chairman of the commission, is not present today to take part in our proceedings; I am sorry for the reason for that.
I congratulate the Hansard Society Commission on its report, even though I shall be critical of some of the report in major respects. For example, I regret that it did not seem to have taken evidence from the business managers. We heard today from the noble and learned Lord, Lord Howe of Aberavon. As a former Leader of the House of Commons, he must be counted as a 1307 business manager and he has greatly added to our knowledge. However, if the business managers had been heard, there would have been much talk about goal posts and playing fields but not much acceptance. It is an important omission in the report that the business managers were not heard. We want to know what are the objections to all the fine proposals which have been made; and no doubt we shall hear from the business managers in the next month or two what the proposals are. However, I should like to have heard the views of the Hansard Society Commission on them.
The Lord Privy Seal (Viscount Cranborne)
My Lords, will the noble Lord forgive me for intervening? Perhaps I may refer him to paragraph 18 of the introduction to the report where it is made clear that both the Lord President of the Council and the then Lord Privy Seal were consulted. Both of them qualify as business managers.
§ Lord Henderson of Brompton
My Lords, I stand corrected by the noble Viscount; but I do not think that they were accompanied by their Whips, and that seems to me a rather important omission.
In Chapter 5, on the parliamentary process, the Hansard Society Commission Report states in paragraph 316:In debates on bills, particularly in committee, there has been too much emphasis on policy issues and inadequate attention to the practicality of what is proposed".Quite frankly, I would address that criticism to the Hansard Society Commission itself. I found myself wondering just how practicable the proposals are.
That brings me to the significant proposal of the noble Lord, Lord Aberdare. I very much hope that the House will adopt it, at least as an experiment; I have long been in favour of such a procedure. I ask that the practicalities should be examined in great detail by the Procedure Committee because that proposal suggests that Bills of some length and complexity should be examined in that kind of committee. If that is so, and if Bills really are of some length and complexity, I should have thought that the procedures in the Aberdare committee would themselves be lengthy and complex. If a Bill is lengthy and complex, I very much doubt whether it could be properly considered by the Aberdare procedure in, let us say, one day. If it takes more than one day—for example, two or three days—then it will considerably affect the timetable of the Bill. Matters of that kind have clearly not been gone into by the commission, as they will need to be if the proposals are to be adopted in the House, as suggested.
The report states in paragraph 316:legislative business is often too rushed".But how is it to be less rushed if we introduce a new stage in the parliamentary timetable? It seems to me that a great many of the recommendations are desirable in themselves—and I agree that they are—but all require more time in days, weeks or months, if we add them all together.
The commission is to be much congratulated on the successful implementation of Recommendation 75, which concerns the Delegated Powers Scrutiny 1308 Committee in this House. That is a notable success. In Recommendations 100 and 101, the commission also recommends that the committee should take on further powers. I fully agree; but that new committee is already expensive and if it is to be given those extra powers, it will require additional resources, as the commission acknowledges. I believe that that expenditure is well worth while; but I doubt whether the Chancellor of the Exchequer would take the same view. The noble and learned Lord, Lord Howe, said that when he was Chancellor of the Exchequer he proposed amendments to procedures which he thought were desirable on the grounds of cost. I doubt whether that will be followed.
It is important that the recommendations should be subject to a strict audit on both time and cost. Like so many other desirable things, priorities will have to be decided, as the noble and learned Lord, Lord Howe, said, by politicians who will not wish to accept all the recommendations because of the total cost in both time and money.
I wish to say a brief word about the delightfully written Memorandum 18 entitled "Clarity". I wish to know who or where is Clarity? What is she—or is that an official secret? The memorandum was so well written that I think it should be published as a separate paper. The excellent memorandum discusses the use of purpose clauses, and recommends them. I was disappointed not to see that endorsed in the recommendations of the Hansard Society Commission. Purpose clauses could reduce exceptional resort to Hansard by the courts. In that connection, I am sorry to have to disagree with the noble Lord, Lord Aberdare, but I cannot wish on the courts the use of Notes on Clauses made into Notes on Statutes. Where will we end if we adopt that, as well as looking at Hansard? I doubt whether it is profitable.
I have been critical of the report, and I have one positive solution. It is to accept all the recommendations on pre-legislative consultation. There lies the way in which the legislative log jam in time can be remedied. Time spent before the introduction of legislation is time which will be important, and it will save time on the Floor of both Houses of Parliament.
The very important innovations which are taking place for Law Commission Bills should in future be followed for non-contentious public Bills. Why should we spend hours of our time, for example, on weights and measures or such Bills, departmental Bills, which are totally accepted in a non-party political manner by both Houses of Parliament? We should not debate those Bills, because every detail should have been subject to consultation and political agreement before their introduction. If we remove the mainly non-controversial substantial Bills which emanate from departments, we would then leave Parliament to discuss the crucial controversial legislation to which it should devote the greatest attention. If that should happen, if there were real, proper consultation before the introduction of legislation into Parliament, then I believe that such Bills could go to special committees, in the same way as Law Commission Bills do. Then the subsequent proceedings in Parliament after the Bill has gone to such a special committee would be brief. Therein lies salvation, so far as I am concerned, rather than—and here I differ from 1309 the noble Lord, Lord Aberdare—the extension of one Session into another, so that we have two-year Sessions. I believe that the saving by pre-parliamentary processes should be the answer and not tampering with the terminal arrangements which we know so well, the arrangements for single Sessions where business falls if it is not completed at the end.
§ 4.20 p.m.
§ Lord Renton
My Lords, I am glad to follow the noble Lord, Lord Henderson of Brompton. He was a valuable member of the committee on the preparation of legislation. The report of that committee, of which I had the honour to be chairman, is the only official report on the drafting of legislation that has been presented to Parliament in the past 120 years. It is however a very good thing that the Hansard Society decided to hold another inquiry.
I should like to congratulate the noble Lord, Lord Nathan, not only on initiating this debate but on the kind way in which he referred to the little bit of local difficulty that I have been having. I, too, greatly regret the absence of my noble friend Lord Rippon of Hexham. Indeed, had he been here, I would have given him advance warning that on one important matter I shall have to disagree with the findings of his commission. I pay tribute to the noble and learned Lord, Lord Simon of Glaisdale, for all his influence over many years towards improving the drafting of statute law.
In the main I agree with the Hansard Society report, but especially with its recommendation that the Attorney-General in England and Wales should be responsible for parliamentary counsel, just as the Lord Advocate is responsible in Scotland. It is absurd to have the Lord Advocate responsible on one side of the Border and on the other side the Prime Minister, who cannot give a moment's time to the policy or the output. Perhaps I may say with great temerity that in my opinion, broadly speaking, Scottish legislation is better drafted than is other legislation. I have corresponded with every Prime Minister except one since 1975 on this question of responsibility. I am afraid that the answers are not of a kind that it would be helpful to put before your Lordships.
There is just that one matter in the Hansard report with which I strongly disagree. Paragraph 239 of the report states:we do not agree with its proposals"—that is the Renton report—for solving the problem of how to inform users of the intention underlying the words of a statute. We firmly believe that certainty in the law must be the paramount aim in the drafting of statutes, and we do not believe that the automatic inclusion of statements of principle or purpose in the body of Acts would help to that end".However, it is those statements which help to achieve certainty, especially when detailed provisions are ambiguous or obscure in their meaning. Our committee received evidence from the top judges on both sides of the Border; and every single one of them implored us to get the underlying intentions of Parliament made clear in every statute so as to ease their difficult task of interpretation.
1310 Perhaps I may give an example. In the Children Acts—not only the 1989 Act but in some of its predecessors—there is a provision that says in effect that in interpreting and applying the provisions of the Act the interests of the child shall be regarded as paramount. A long and very detailed statute follows; and what a wonderful guide to interpretation that is! So I really cannot agree with the Hansard Society when it states that if guidance like that is given it leads to a conflict. I am sorry to have to say so, and I am being more blunt than is customary in this House, but I believe that that is quite unacceptable as a statement.
The overriding advantage of purpose clauses is that they are approved by Parliament. They have the full force of law. They are contained in primary legislation. That is much better than a fallback solution of Notes on Clauses, even those which have become Notes on Sections and are prepared after the Act has had Royal Assent. They would be prepared by officials. Parliamentary draftsmen may be asked to help, but one draftsman wrote to the The Times a year ago saying that they simply did not have time, that they had to move on to prepare the next Bill. The fallback situation that the Hansard Society Commission recommends is not the best solution.
My noble and learned friend Lord Howe, in a most interesting speech, pointed out that our statute book gets longer every Session. That is not so much because there are more statutes but because officials, MPs and occasionally we ourselves try to cover every hypothetical contingency. But then in practice, in coming before the courts, contingencies arise which have never been thought of. When that happens, what are the poor blessed judges to do if they are not to be given the underlying intention of Parliament? We really must have purpose clauses. I say to my noble friend the Leader of the House, whom I am delighted has been given the responsibility of answering this debate, that I hope he will persuade his Cabinet colleagues that Ministers should take the responsibility. Each Minister is responsible for his own Bill. It is not officials who are responsible. Every Minister should order officials and parliamentary draftsmen to make the underlying intentions of Parliament clear whenever that is necessary. Sometimes in a very long Bill there may have to be half a dozen purpose clauses. Sometimes, as in the Children Act, one will do. But it must be done.
Finally, and as part of my main theme—especially in the presence of the noble Lord, Lord Lester of Herne Hill, who has given such great thought to these matters and whose speech we also enjoyed—I feel bound to refer to Pepper v. Hart. That is also regarded as a suitable alternative or fallback position. But anyone who has piloted a Bill through either House of Parliament knows—although none of the judges except the Lord Chancellor who was on the judicial committee of Pepper v. Hart has ever had that responsibility—that Ministerial statements fall far short of legal certainty. One cannot get away from that.
Why is that the case? First, I know, one has sometimes had to submit to persuasion at an early stage of a Bill and at a later stage has contradicted what one said. Counsel appearing in a case would have an awful 1311 job when getting two contradictory statements from the same Minister. Another difficulty is that many of the statements that are made by Ministers are made on the spur of the moment without advice and some are ill-considered. Even worse, sometimes they may be based on wrong advice! But the worst thing about Ministerial statements is that they are not part of the law. So do not let us regard them as being a suitable fallback. Let us try to get the law right! And we are more likely to get the law right if we avoid too many attempts to include hypothetical detailed circumstances and if we make the broad intentions of Parliament clear. So some day—I hope before too long—let us have Pepper v. Hart reversed.
§ Lord Lester of Herne Hill
My Lords, before the noble Lord sits down, perhaps I may say that I do not wish to re-argue Pepper v. Hart before your Lordships' House. It would be highly inappropriate for me to seek to do so. I quite agree with the noble Lord, Lord Renton, that recourse should be had to the parliamentary record only where legislation is defective in its text because it is ambiguous or apparently absurd. There must be clear limits to the use of the Pepper v. Hart exception by the courts.
I wonder whether the noble Lord, Lord Renton, is aware that, during the course of argument, the Attorney-General made to the Appeal Committee precisely the kind of point made by the noble Lord. The noble and learned Lord, Lord Ackner, who is too modest to say again today what he said on that occasion, interrupted the Attorney-General and asked, "Mr. Attorney, is the proposition that a Minister should think before he speaks inimical to the proper processes of government?" The Attorney-General found it difficult to reply.
§ Lord Renton
Unfortunately, my Lords, the noble Lord has driven me beyond my 10 minutes. I should love to answer and comment on that rather frivolous interruption.
§ 4.31 p.m.
§ Lord Ackner
My Lords, on that happy note, I rise intending to limit my submissions to commencement orders. But perhaps I may say to the noble Lord, Lord Renton, that I was a party to the decision which is not his favourite one; and that ever since it was in the Law Reports, I have observed no problems of any kind and quite a considerable degree of assistance. We have been following what I understand is done in Australia and New Zealand, which we were told caused no problems at all.
I turn to the subject of commencement orders. They usually allow the Minister to appoint a date or dates for the coming into force of one or more provisions of an Act. I submit that they are capable of being productive of two quite different vices. First, it gives rise to the absence of parliamentary control; secondly, it enables the Government to ignore reality by not being obliged to think through the consequences of their legislative proposals, thus giving Parliament a false sense of security.
1312 Perhaps I may illustrate my propositions by three examples which have all occurred this year. The noble Lord, Lord Lester, referred to the position of the victims of violent crime. I shall refer to that situation very shortly. I am acutely mindful of the fact that there is a pending appeal from the decision of the Court of Appeal and I shall in no way make any observation about the legal situation. I am concerned purely with matters of constitutionality. I shall refer merely to one or two dates to show how the absence of parliamentary control is illustrated by that particular situation.
In 1964, 30 years ago, provision for the compensation of victims of crime on an ex gratia basis were brought into force, in order to see how it would work out. It appeared to work very well. In 1979, some 15 years later, the Royal Commission under Lord Pearson, of which the noble Lord, Lord Allen of Abbeydale, was a member, approved of the compensation and the basis of that compensation, which was common law damages—damages which the victim would have received if he had successfully sued the criminal—but suggested that it should be put on a statutory basis in order that Parliament should exercise control over a situation in which a large amount of public money was being spent. The Government accepted the recommendation but did nothing.
In a debate in 1984, the noble Lord, Lord Allen, drew attention to the situation and the Government again confirmed that the scheme would be put on a statutory basis. In 1988, the Government, in the Criminal Justice Act of that year, introduced detailed legislation—found in Sections 108 to 117 and Schedules 6 and 7—to do precisely that; and in Section 171 an obligation was placed on the Minister to bring those provisions into force.
In 1993, without any consultation, a White Paper was produced by the Government which provided a radically different ex gratia scheme: the tariff scheme. In June of this year this House made to the Criminal Justice and Public Order Bill an amendment which was later defeated in another place, which required the Government to carry out their statutory obligation as contained in Section 171. There were many voices which said that the Government, through the use of the commencement order, had committed an abuse of parliamentary democracy.
My second example relates to the Courts and Legal Services Act 1990, to which the noble and learned Lord, Lord Simon of Glaisdale, referred. Under Section 58 of that Act, the Lord Chancellor was given the power to provide by regulation for speculative litigation to be permissible. It was not permissible prior to the Act as it was considered to be contrary to public policy because of the danger of a litigant being exploited and the prejudicial effect that it might have on the interests of justice in giving a lawyer a stake in the proceeds of litigation. In the teeth of opposition—among others from seven Law Lords, the Master of the Rolls, the former Lord Chancellor, the Royal Commission under the noble Lord, Lord Benson, the Government's White Paper in 1984 and a report by the Law Commission—Section 58 was passed.
1313 A year later, in 1991, there was a consultation document provided by the Lord Chancellor which proposed that the lawyer who was successful should be able to increase his fees by 10 per cent., so that the successful litigant would himself have to pay 10 per cent. of the lawyer's fees, the rest coming from the unsuccessful defendant. The Lord Chancellor's very own Advisory Committee thought that that was sensible. Two years later, in May 1993, the Lord Chancellor doubled that figure to 20 per cent. That was not apparently acceptable to the solicitors who contemplated becoming parties to the scheme, and in August 1993, without any further consultation with his Advisory Committee, the amount was increased to 100 per cent.—that is 10 times the original proposal.
The Lord Chancellor's own Law Advisory Committee was so affected by what it considered to be the "startling complications", it issued a press notice requiring the Lord Chancellor to think again. He is still thinking about it. Last November there was a debate in this House under an Unstarred Question on the draft regulations, which are not yet in final form. They are still not in final form. We must expect that, if they ever come into final form, it will be in 1995.
In my submission, Parliament would not have worn proposals of that kind. It would have realised that the possibility of the litigant losing the entire proceeds of the litigation was unacceptable.
The other example arises under the Judicial Pensions and Retirement Act 1993. Under that Act the retirement age for judges was reduced, as they themselves had initially suggested, to 70 but at the same time there was brought into force a proposal that they should have to work an additional five years—from 15 years to 20 years—to earn their pension. That is exactly twice the time a judge has to spend earning a pension in the United States, in Canada and in Australia, and was dubbed by The Times as "an absurd anomaly". The interesting thing is that the Act was passed in 1993. At that time there was great pressure for more judges to be created and, ultimately, after the Act was passed, 10 more judges—High Court judges—were created. But the Act was not brought into force. The Act still has not been brought into force.
The Lord Chancellor recently announced that he was going to increase the establishment of Law Lords by two and the Court of Appeal by three. That means at least five new judges in the Court of Appeal. When one takes into account that there are resignations soon to come, both there and in the High Court, there will be a requirement for another batch of some 10 judges. In the course of his statement supporting that order the Lord Chancellor said that he "expected" that the Act of 1993 would come into force in 1995. I am prepared to wager that it will not come into force until that large batch of judges is appointed, for the very simple reason that if the matter had been properly thought through it would have been realised that one cannot achieve the quality that is needed if one downgrades pensions in the manner in which it has been done.
1314 Those are merely examples of legislation not thought through, examples of self-induced myopia by the Government, thereby depriving Parliament of seeing the reality of the true position.
§ 4.42 p.m.
§ Lord Hayhoe
My Lords, first I want to add my appreciation to the noble Lord, Lord Nathan, for initiating this debate, the importance of which is underlined by the very fact that the Leader of the Opposition and the Leader of the House are to reply. Unlike preceding speakers, I have no great expertise on these important matters, but I venture to intervene because for four years, from early 1990, I was chairman of the Hansard Society for Parliamentary Government. As chairman, I was involved in the establishment of the Hansard Society Commission on the Legislative Process, whose report has been much referred to today. Most important of all, I persuaded my noble friend Lord Rippon of Hexham to be chairman, and I share the real anguish of many of us that he is not able to be in his place today to participate in the debate, as I know he would have wished to.
The original suggestion for the commission came from my noble friend Lord Aberdare, then Chairman of Committees. The financial backing to make the commission possible came after a great deal of effort from the Nuffield Foundation and we were most fortunate to secure the services of Michael Ryle, a former Clerk of Committees in another place, to act as secretary. These, together with an authoritative and distinguished group of colleagues, produced this very important report.
I was also glad that we were able to publish a selection of the written evidence and I hope that any of those who have an interest in the matter do not confine their reading merely to the report and its recommendations but look at that evidence which is set out in the appendices of the report.
The Hansard Society—perhaps I should say a brief word about it—was founded in 1944 and is celebrating its 50th anniversary this year. Stephen King-Hall, the founder, had as his principal objective "to promote knowledge of and interest in parliamentary government", and through publications, schools' conferences, mock elections, its Hansard scholars programme, and many, many other activities, the Hansard Society carries through the objectives of its founder. From time to time it sets up commissions on matters of considerable public interest. For example, in recent years there was the commission concerned with the place of women, particularly in public life, which published a report Women at the Top. The chairman of that commission was Lady Howe, the wife of my noble and learned friend Lord Howe of Aberavon, whose important contribution today was welcomed in all parts of the House.
In 1991 was published An Agenda for Change: The Conduct of Election Campaigns, a commission chaired by Christopher Chataway. I hope that its recommendations will be implemented more widely as time goes on and that there will be greater appreciation of their value. Last year, Making the Law came forward.
1315 No one can be satisfied with our law-making processes. The Hansard Society Commission puts forward more than 100 detailed recommendations which deserve detailed consideration, and much more consideration than can possibly be given in our short debate this afternoon. I wonder whether this debate will at least encourage Ministers, parliamentarians, civil servants, advisers to Ministers and officers of both Houses to look again at the report, its recommendations and the evidence. I wonder whether the Government might be prepared to go a little outside their normal way of dealing with matters and perhaps provide a government response to the report along the lines of the responses which government normally make to the recommendations of the report of a Select Committee. I believe that if there were a real desire by the leaders of both Houses of Parliament to contribute to this important public debate they could find a way of publishing a detailed response to these recommendations.
So far as concerns the critical comments we have heard from the noble Lord, Lord Henderson of Brompton, and from my noble friend Lord Renton, perhaps I may refer them both to paragraph 22 of the report, where it is said:There may be doubts and disagreement about the details of our proposals—I suspect there would be quite a few of those if we were to get a formal report from government—but above all we hope that our conclusions and recommendations may stimulate further debate, open up the argument, and get the thinking moving".That really is an objective to which we could all subscribe. I realise that my noble friend the Leader of the House may not be in a position to give a positive response this afternoon but I hope that he will consider the possibility of giving a more formal response in written form to these recommendations.
In conclusion, I had intended to reiterate the guiding principles that are set out at the end of Chapter 2 but the noble Lord, Lord Lester of Herne Hill, has pre-empted me in that, although I must say that those five principles certainly deserve repetition and I hope will be constantly in the mind of those who are concerned and responsible for the various parts of our legislative process, which of course must be improved. This debate, the Hansard Society Commission report, the as yet unimplemented recommendations of my noble friend Lord Renton in his report on the preparation of legislation some 20 years ago—all those and much else besides, as my noble and learned friend Lord Howe of Aberavon made clear, have contributed to a widespread general agreement about the essential requirements of reform. All that is now required is a determined will by all concerned to get that reform moving.
As someone who is not a great expert in the legislative process, I would add one last plea to governments of all complexions. I believe that there has been far too much legislation in recent years. If only we could have less legislation the public interest would be better served. It is a fairly standard political response to 1316 anything that a government may do to say, "It is too little and too late". As regards legislation the record shows that "It is too much and too soon".
§ 4.50 p.m.
§ Lord Holme of Cheltenham
My Lords, it is a particular pleasure to follow the noble Lord, Lord Hayhoe, not least because for the years in which he was chairman of the Hansard Society, I had to do so as his vice-chairman. It gives an indication of the cross-party and all-party nature of the Hansard Society that I should be following him from this side of the House. If anything, in his usual modest way he understates his role in having established this commission under the chairmanship of the noble Lord, Lord Rippon.
I believe that the Hansard Society performs the role which he has described and that it is sometimes neglected in the very adversarial political culture in which we live; namely, the role of delineating the public interest. This is surely a matter of public interest and not merely of partisan interest.
As well as paying tribute to the noble Lord, Lord Rippon, as other noble Lords have done, and expressing my regret that he cannot be here, and without in any way detracting from his contribution and that of the other members of the commission, I wish to make particular mention of the secretary to the commission, Mr. Michael Ryle. As the noble Lord, Lord Hayhoe, has said, he is a former Clerk of Committees. The report bears the imprint of his drafting and the clarity of his thinking. I believe that that is one of the reasons for it being such an outstandingly useful document.
This has been a very interesting debate. We enjoyed and are grateful for the opening contribution from the noble Lord, Lord Nathan, and we are grateful to him for procuring this debate. What the noble and learned Lord, Lord Howe of Aberavon, asked the noble Viscount the Leader of the House, was particularly important. He asked: whose responsibility is it within the Government to run with this issue? Unless it has a departmental and ministerial home it is very unlikely that anything will happen. I hope that when the noble Viscount responds to the debate he will tell us what his thinking and that of the Government is on this matter.
The point which the noble Baroness, Lady David, made about scrutinising legislation to see whether it complies with the European Convention on Human Rights is extremely important. I know that is being considered by the Liaison Committee of this House. Perhaps when the noble Viscount responds he will tell us something of the Government's attitude to that matter. We are not just signatories to the treaty. The British citizen now has a right of individual petition to Strasbourg. It is important that legislation complies with the European convention. I shall be interested to hear what the Government's attitude to that will be.
As he always does, my noble friend Lord Lester made an outstanding contribution to the debate. He has particularly drawn our attention to the outrageous pricing policy on the cost of Hansard. I believe it is now all the more important because there is no broadsheet quality newspaper that any longer reports in a sober way what happens in Parliament. Parliamentary reporting has 1317 become a sub-branch of political reporting and political reporting itself seems to have become a sub-branch of showbusiness. Therefore it is extremely difficult for interested members of the general public to gain any sense of what is happening in Parliament. That is all the more reason why I believe that the Government and HMSO should look at a popular pricing policy instead of a prohibitive and elitist one for their publications.
Although I am associated with the Hansard Society, I agreed with the observation of the noble Lord, Lord Renton, about the need for a statement of purpose and principle in Bills. I was interested to note that the Hansard Society reached the opposite conclusion. I am sure that that is a matter which we should pursue.
One common theme which has distinguished this debate has been the need for more consultation with the general public and expert bodies of one kind and another. The truth is that this and previous governments have no clear policy in this matter. As regards some Bills and legislation there is consultation; on others there is very little or none at all. When the noble Viscount the Leader of the House replies perhaps he will tell us whether it is contemplated, in the recesses of Whitehall, that there should be a consistent policy which will operate across all legislation on the matter of consultation. That seems to be intrinsically within the principles set out by the Hansard Society as a necessary and good thing.
We should accept that we compare very unfavourably in Parliament with Congress, the Bundestag and with the European Union itself, in our pre-legislative discussion and the ability to have consideration of legislation before it reaches too final and definite a form.
The noble Lord, Lord Hayhoe, and my noble friend Lord Lester both referred to the five principles adduced in the Hansard Society report—that is to say, that the law should be clear; that it should be intelligible; the product of consultation; democratically scrutinised and that it should be accessible. They are good principles. If we pursued the thought of the noble Lord, Lord Henderson, that there should be an audit in this age of charters, and said "Let us have a real Citizen's Charter", what would it say about our own activities? What requirements might be laid on Parliament to conduct its own activities in accordance with those principles? If we were to check performance against principles, how well would we respond? If there were a regulator or "Oflaw", would "Oflaw" have reason to criticise Parliament fairly often and say that we have not lived up to our obligations to the citizen? I suspect that this putative regulator would say that we had failed in our obligation to meet the principles of accessibility, clarity, democratic scrutiny, intelligibility and so on.
I personally have no doubt that if these problems are put in a wider context, they are not merely mechanical and procedural. I believe that they are symptoms of overload; that there is a systemic problem about what Parliament does as well as a procedural problem. We are now probably the most centralised democracy in the world. We have—and it is a common matter for academic discussion—a part fusion of the Executive and the legislature. One can see what has happened to Parliament by looking at the statistics in the appendix to 1318 the report. There has been a 20-fold increase in statutory instruments during this century from about 156 in 1901 to nearly 3,000 currently. We have a Parliament which, as has been said by the noble Lord, Lord Hayhoe, is possibly trying to do too much.
What is the answer to this? I am not convinced that it is merely exhortation that we should exercise restraint in some way. I believe that part of the solution is to devolve more power from this Parliament to the nations and states, the regions and the local government of the United Kingdom. Perhaps we are too congested at the centre because we are trying to do too much. If we did less, we might do it better. We would do less if we devolved power.
In conclusion—this is the only political point that I shall make in what has otherwise been an admirably bipartisan discussion—I do not get the impression that the Government, measuring their months or years ahead, have a particularly full legislative kit bag. They do not seem to be overburdened with legislation that they would like to put on the statute book. The Government now seem to be in the depressive cycle at the moment—governments tend to go through manic depressive phases. If that is so, could not the Government turn their full attention and energy from the product of parliament to the process of parliament, from law to law-making? Is this not a good time for trying literally to clean up the parliamentary act? A good indication of a determination to do that—a good first step—would be for the Leader of the House to pick up the proposal that was made by the noble Lord, Lord Hayhoe, and to tell us whether the Government feel able to make a formal and full response to the Hansard Society Commission. That would be in the spirit of your Lordships' debate and would take us one step further.
§ 5.1 p.m.
§ Lord Richard
My Lords, it is usual in such debates to begin by thanking the initiator and those who produced the report on which the debate has been based. I do not regard this afternoon's debate as a matter of form in any way. Having listened to the whole debate, I should say that I have found it extraordinarily good. This is perhaps one of the things that this House does rather better than the other place. We should all be grateful to the noble Lord, Lord Nathan, for initiating the debate. We should certainly be grateful to the noble Lord, Lord Rippon, and the Hansard Society for producing the report. I am sorry that the noble Lord has not been with us this afternoon.
This has been an interesting and fascinating debate. Contributions have ranged widely. Half of the speech of the noble and learned Lord, Lord Howe of Aberavon, was an apologia pro vita sua and the other half was a major contribution on what should be done. I believe that it is right to say that the report on legislative drafting which was produced by the noble Lord, Lord Renton, has been more quoted in Parliament than any single report in the last half century—or 40 years—
§ Lord Richard
My Lords, in the past 20 years. It is a very good report, which I enjoyed.
1319 I suppose that we should ask ourselves first: is there a problem? I looked first at the figures in the report and found them revealing. In 1901, 40 public Acts were passed, taking up 247 pages of legislation and 400 sections. In 1981, 72 Acts were passed, occupying 2,276 pages. In 1991, 69 Acts were passed, taking up 2,222 pages. I thought that the amount of legislation had decreased by 50 pages in 10 years, but then I read the footnote which stated that the paper size was increased to A4 in 1987, so fewer pages are required. Therefore, the fact that the number of pages has decreased does not affect the volume of legislation, which is immense. Turning to delegated legislation, in 1901 there were 156 statutory instruments. By 1991, there were 2,945.
Not only does Parliament now have to deal with an immense amount of legislation; the general public has to assimilate it. If there is one general plea to have come out of the report and our debate, it is that, when producing legislation, governments should consult more wisely before starting. They should draft their legislation more clearly and simply before presenting it to Parliament. They should pass legislation more efficiently and effectively through Parliament and they should disseminate the results of that legislation more widely once it has been passed. Those are the four general points upon which the debate has hung and I should like to say a brief word about each.
On consultation, it is interesting to note from the figures in the report—the raw material of the report—that, in effect, a process of creeping consultation is now taking place. In 1986, eight Green Papers and 11 consultative documents were issued by the Government. By 1991, those 11 consultative documents had increased to 232, on subjects ranging from scallop dredging in the 12-mile inshore zone to the local government review. There is now a wide variety of issues upon which the Government think it right to have some form of consultation before they produce their plans for legislation, let alone the legislation in draft. What seems to be wrong is that there is no pattern, no mechanism and no obligation on the Government to enter into any kind of consultation process.
From reading the report and listening to the debate, it has become clear to me that it is incumbent on governments to try to produce a firm and definite mechanism for consultation. In other words, some kind of consultation will be expected to form part of the normal legislative process. I should not dream of trying to spell out at the end of such a debate the precise way in which that consultation should take place or the bodies and people with whom the Government should consult. However, the lack of such a mechanism seems a major omission which governments could put right without too much pain.
One answer to the plea of the noble Lord, Lord Aberdare, for a two-year legislative cycle is that there is no reason why there cannot be consultation in one Session even if the Bill is not introduced until the next Session. Indeed, there is no reason why a Bill cannot be drafted in one Session even if it is not introduced until the next. Therefore, to some extent, the issue of whether there should be a one-year or two-year parliamentary 1320 cycle is somewhat irrelevant to the process of producing Bills. Everybody seems to agree on the principle of consultation; the difficulty is agreeing the mechanism. I hope that the Government will now begin to take that seriously.
Perhaps I may say one or two words about drafting, about which several points have been made. I turn first to the office of the parliamentary draftsmen. The argument for putting them under the Attorney General seems to grow stronger as the years pass. It is not a new argument and I am sure that they would resist it with all the skill and determination that they are known to possess. However, perhaps it is now time that the parliamentary draftsmen were put under the overall direction of somebody who is legally qualified and who can spend some time looking at the way in which they work. That does not seem to be happening at the moment. That part of the report is persuasive, and I accept it.
As is stated on page 47 of the report:There was now no body charged with scrutinising the form, arrangement and language of proposed legislation before it was presented to Parliament, the Legislation Committee of the Cabinet having largely abdicated this function".I am not quite sure why the committee has abdicated that function, because taking a general oversight of the legislative process at that stage and an overview of what the drafted Bill would mean seems a sensible proposition.
I also take the point about Notes on Clauses being converted into Notes on Sections when the Bill has been passed. That could usefully be considered. Frankly, if Notes on Clauses were more widely available during the legislative process, we should probably have more sensible Committee stages and a more detailed examination of the terms of Bills. They would, in effect, be converted into Notes on Sections once the Bill was passed, as I understand the proposal. Frankly, it is much easier to read a note on a section than to read the section—and I say that as a lawyer. If a layman knew at least the general intent of what the legalise was meant to express and enshrine, it would be helpful in terms of informing the public.
I do not take the same purist view on drafting as does the noble Lord, Lord Renton. It is not an either/or thing. One cannot say, "If only the drafting were right, you would not need"—as he called them on a number of occasions—"these fallbacks". It would be difficult to get the drafting right. If it happens, it will take place over a period of time and not because suddenly there is one morning a blinding light in the eyes of the parliamentary draftsmen on the road to wherever their office is in Whitehall. It will happen gradually over a period of time, but what the noble Lord calls "fallbacks" will nevertheless be terribly useful.
§ Lord Renton
My Lords, I am grateful to the noble Lord for giving way. I agree with the noble Lord to this extent, it will take years for drafting to become perfect, if it ever does, but the better we make it the less fallback we need.
§ Lord Richard
My Lords, I accept that entirely. It may well be that, once the drafting is perfect, we shall 1321 not need the fallbacks. They would no doubt fall into disuse, but until we reach that stage of perfection—I said that the noble Lord was somewhat purist in his attitude—and can look at legislation and say, "My goodness! It is clear, understandable, precise and pure", the fallback proposed in the Hansard Society report is worth having.
I shall say two brief words about the parliamentary process itself. One lesson is that too much haste in the preparation of legislation and the rushing of it through both Houses of Parliament results in bad Acts of Parliament. There have been some notable examples. Some have been quoted this afternoon. I think particularly of the Dangerous Dogs Act. If ever there were a Bill upon which the Government should have consulted more widely, should have ensured was properly drafted before introducing and should have taken more time getting through Parliament, it was the Dangerous Dogs Act. I see that my noble friend Lord Houghton is in his place. I suspect that he would agree with every syllable that I have just uttered in relation to that Bill. It is a good example of how, if legislation is rushed, there is a bad result.
Perhaps I may say a word about the techniques that now seem to be thought of in relation to this House in particular. I do not want to repeat the discussion we had about five or six weeks ago in relation to the procedures of the House, but some of the proposals for an intermediate stage—an inquiry stage, if I may put it that way—before we reach a formal Committee stage, may help, and are worth looking at. I do not believe that in the end they would take up much more time. One of the concerns of the noble Lord, Lord Aberdare, was that were such measures to be introduced, more time would be needed. That may be so, but I should have thought that in the long run we would have better legislation and the formal Committee stages would probably take less time.
If we can produce proposals which provide for wiser consultation, clearer drafting, legislation going through both Houses more efficiently, and better dissemination of the results, and if the Government can give us assurances on at least some of those matters, then the debate will have been worth while, and the House will owe its thanks to the noble Lord, Lord Nathan.
§ 5.14 p.m.
My Lords, like the noble Lord, Lord Richard, I feel that this has been a most useful and helpful debate, and like every noble Lord who has spoken I am grateful to the noble Lord, Lord Nathan, for introducing the subject this afternoon. As the noble Lord, Lord Holme of Cheltenham, said, this is a matter of public interest, and therefore perhaps a particularly suitable subject for your Lordships.
I have read with considerable interest the 1975 report produced by my noble friend Lord Renton and the report of the Hansard Society Commission on the legislative process which we are discussing—if I needed any reminder by those two reports. Like my noble friend Lord Aberdare, I am aware of the drum beat of dissatisfaction in your Lordships' House and elsewhere over the legislative process. It was expressed notably in 1322 the recent debate on the Sittings of the House which has been referred to a number of times this afternoon. The House then debated a report of a group also chaired by my noble friend Lord Rippon, whose absence has been so rightly noted and which I, too, greatly deplore. We wish him a rapid discovery.
Like the Hansard Society, I have also had occasion in your Lordships' House to refer to the writings of my noble and learned friend Lord Howe of Aberavon, and have listened with considerable admiration to the animadversions on secondary legislation of the noble and learned Lord, Lord Simon of Glaisdale. I say to my noble friend Lord Hayhoe that I have been increasingly conscious in the face of that accumulating evidence of interest that the Government owe your Lordships at least an interim reaction. It is for that reason that I am especially grateful to the noble Lord, Lord Nathan, for the opportunity he has given me. I suspect, however, that this is more likely to be my first rather than my last word on the subject in view of the short time we have this afternoon and because by its very nature the subject is one to which we shall return constantly. For surely, as many of your Lordships have hinted, the price of good legislation is eternal vigilance.
As this is a short debate, like others who have contributed I can hope to touch on only one or two points raised by your Lordships on a long and complex report on a complex subject. I have said this is an important subject. All noble Lords have said the same. It is important for us as legislators but, above all, it is of practical importance to those who use the legislation and are affected by it. That is why I welcome the principle enunciated in paragraph 7 and in the introduction to it of my noble friend Lord Hayhoe that the processes by which statute law is produced should be dictated, above all, by the needs of its users.
The simplest way to contribute towards achieving that object is as many have described this afternoon. It is important that the language of legislation should be intelligible. I was pleased to see at paragraphs 213 to 222 that the commission felt that much improvement had already occurred in that field in recent years and it welcomed the recent move towards textual amendment. However, I was equally interested to note at paragraph 219 that the commission recognised that certainty in legislation is also a virtue. Unlike the noble and learned Lord, Lord Simon of Glaisdale, the commission recognises that that must militate against simplicity, at least to some extent. However I recognise, as does the Hansard Society, that there is no simple answer to that dilemma.
The noble and learned Lord, Lord Simon of Glaisdale, also chided me for quoting selectively from the report of my noble friend Lord Renton in reply to his recent letter. I agree with him that certainty and brevity in legislation are not necessarily wholly mutually exclusive, but it is fair to say that there is a tension between the two. The only point I was seeking to make—I apologise if I expressed it less than clearly in correspondence—is that legislating merely by laying down general principles is in most cases unlikely to provide the certainty which Parliament and the public should expect. I agree with the noble and learned Lord 1323 and my noble friend Lord Renton that there is no virtue in legislation which attempts elaborately to deal with every conceivable circumstance, heaping—if I may put it this way—detail upon detail.
However, other factors can contribute to clear legislation. They serve the user and if brought into play they can improve the quality of legislation. The first—and it may seem obvious—are the resources of the parliamentary draftsmen. After a short acquaintance with that remarkable office, I am particularly pleased that at paragraph 187 the commission approves in principle of the present arrangements. However, as many noble Lords have pointed out today, it believes that the draftsmen ought to report to the Attorney-General.
I agree that we are immensely well served by that office. As was recognised by my noble and learned friend Lord Howe, among others, one of the main constraints upon it is shortage of staff. It therefore gives me particular pleasure to be able to announce today that the Office of Parliamentary Counsel will recruit four more draftsmen in 1995. I know that my right honourable friend the Lord President of the Council, who has a special concern with the Government's legislative programme, is also pleased that it has been possible to agree that.
One of the reasons why my noble friend Lord Renton approves of Scottish drafting may have something to do with the fact that there are relatively numerous Scottish draftsmen. The measure that I have announced today will help to improve the situation in England and Wales, which may not be entirely attributable to the causes that he suggested.
The report also makes much of the need for adequate consultation, which virtually every speaker today has emphasised, whether the Front Bench spokesmen or the noble Lord, Lord Nathan. I too pay tribute to the efforts of my noble and learned friend Lord Howe when he was in office. He will know better than I that there are considerations which constrain all governments in this regard. Perhaps not all are noble but they are necessary. I need not go into them now. The Government must get their business and, dangerous dogs or not, there is sometimes a need for speed. To be fair, in paragraph 52 the report recognises at least partially the justice of these imperatives—or at least their power.
In last July's Open Government White Paper, the Government recognised the value of consultation on policy matters. However, it is clear that proposals which remain unimplemented are no more than a bare statement of intent. I hope, therefore, that the House will accept that we have taken and are taking a number of measures to try to put this undertaking into practice. I am pleased that the noble Lord, Lord Henderson of Brompton, has recognised that fact.
For instance, we have begun to publish more Bills in advance. Several noble Lords referred to that. We have done so either in whole or in part. Some parts of the Environment Bill, which will receive its Second Reading tomorrow, were published before the end of the last Session. We intend to publish in draft fairly soon a new Reserve Forces Bill which could therefore form the 1324 basis for detailed discussion before it is introduced. We would like to increase the incidence of advance drafting, in particular with Bills of a technical nature. That suggestion was made by the noble Baroness, Lady David. In this respect, I too am encouraged by the example of the law reform measures and I hope that in this way we can address at least some of the recommendations in Chapter 7 of the report. To that extent, I agree with the noble Lord, Lord Richard, that this approach is probably better and more practical than the suggestion of a two-year legislative cycle, for all the attractions which seduced my noble friend Lord Aberdare.
In recent years, one of the most striking developments has been the growth in the proportion of legislation which is made under delegated powers. Some weeks ago we had an interesting debate on the special arrangements for scrutiny of orders made under the Deregulation and Contracting Out Act. I shall therefore not dwell on them now.
I would, however, suggest that the general balance between primary legislation, on the one hand, and conventional secondary legislation, on the other, is an important issue on which it is possible for sensible and well-informed people to hold divergent views.
On the one hand, there is no point in occupying Parliament's time with detailed uncontroversial provisions which could equally well be dealt with in regulations. If, as I know some of your Lordships believe, there is a tendency towards over-elaboration in some primary legislation, it may be because such material has been included. On the other hand, other noble Lords are understandably anxious about conferring wide-ranging powers to implement important policies by means of secondary legislation. The noble Earl, Lord Russell, is one and I suspect that the noble Lord, Lord Holme of Cheltenham, is another.
It is a difficult balance to achieve and, as ever, there is no substitute for sensible judgments in individual cases on which matters should be enacted in which form. But, if I had to express a personal view, my suspicion is that there may be room overall for somewhat greater use of delegated powers, provided that this can be done without loss of quality and with the necessary degree of parliamentary oversight, to which so many of your Lordships referred. I should be extraordinarily interested if the debate were to continue in your Lordships' House and elsewhere as a form of consultation in its own right.
The Motion also invites us to consider the lapse of time between the passage of legislation and its implementation. The noble and learned Lord, Lord Ackner, addressed himself to the question today. This is a matter to which the Delegated Powers Scrutiny Committee gave attention in its 12th report. It recommended that the House should seek a mechanism to ensure that Acts of Parliament are brought into operation. That mechanism has also been advocated by a number of your Lordships today, including the noble Lord, Lord Nathan.
The recommendation is under consideration by the Procedure Committee and, therefore, I hope that your Lordships will forgive me if I do not pre-empt that 1325 consideration. However, I would make the obvious point that no government invite Parliament to enact legislation without intending that it should be brought into effect. It is open to Parliament to specify in enactments the date on which or by which provision will take effect. But that is a course which will not always, or even often, be the wisest one to take.
Circumstances change. It has even been known for governments to change, although that has not been part of our recent experience. It would be an uneconomical use of Parliament's time to have to introduce amending primary legislation whenever it proved necessary for good reason to defer the implementation of legislation. The point made by the noble and learned Lord, Lord Simon of Glaisdale, to the Delegated Powers Scrutiny Committee—that complex legislation may take time to implement and only the Minister will know when a provision is ripe for commencement—also seems to have a considerable force. However, I recognise that a number of your Lordships might add, sotto voce, "He would say that, wouldn't he?".
Several noble Lords—notably the noble Lord, Lord Holme of Cheltenham, and my noble and learned friend Lord Howe of Aberavon—commented adversely on the price of Hansard. The noble Lord, Lord Lester, drew attention to an interesting report on the subject. I was fortunate enough to have read it when it was published under the auspices of the Hansard Society. The Government's policy is that the cost of Hansard should he borne by its readers rather than by the public at large. It is worth noting that there has been no increase in price since 1991. Nevertheless, I have an instinctive sympathy with the impulse behind the report and its conclusions—that our proceedings and those of the House of Commons should be as readily available to the general public as possible. I hope that your Lordships will not press me further, but I certainly wish to reflect extremely closely on the comments that have been made today by Members from all parts of the House, and I am grateful for them.
Finally, perhaps I may reiterate what I said in the debate on the report on the Sittings of the House. Timely instructions to counsel from departments are one of the keys to producing well-drafted legislation. Many of your Lordships made that point this afternoon. I can say to the noble Lord, Lord Nathan, that I am glad that the commission recognises the importance of that and that the answer, as my noble and learned friend Lord Howe said, lies in the Government, and by that I mean government Ministers.
We can never achieve perfection, as I believe I remarked during the course of the debate on the report on the Sittings of the House. But I agree with my noble and learned friend that we have made some progress in that area, as we are beginning to do with the parliamentary aspect of the legislative process. In particular in your Lordships' House I suspect that we shall continue to do so, particularly if any of the experimental measures suggested in the group report on the Sittings of the House turn out to be a success. I was delighted to hear the remarks made by the noble Lord, Lord Richard, in relation to that.
1326 Time precludes me from commenting on a number of matters raised in the report and, indeed, in this debate. For example, I should have very much liked to have made more than a passing favourable reference to the virtues of consolidation and the importance of encouraging the progress of the statute law database. However, as I said a little earlier, this is a subject to which we should and will return. Perhaps I have said enough to your Lordships this afternoon to show that Her Majesty's Government wish to make a positive contribution towards improving the quality of our legislation and giving a convincing answer over the coming months and years to the noble Lord, Lord Nathan.
§ Lord Simon of Glaisdale
My Lords, before the noble Viscount finally sits down, perhaps I may say that your Lordships will be extremely grateful for the speech that he has made. However, would he care to respond to the invitation to say that the Government do not regard amendments to Bills made by your Lordships' House as other than normal and acceptable and that they do not regard them as humiliating or embarrassing, as was expressed in the summer?
My Lords, that is almost like a "When did you stop beating your wife?" question. However, I can say to the noble and learned Lord that I regard your Lordships' House as a House of Parliament and not as an elderly, and indeed young, gentlemen's and ladies' club. Therefore, it is well within the rights and duties of your Lordships' House to seek to amend primary legislation if that is your Lordships' collective judgment. I should be the last person in the world to stand in your Lordships' way of doing so.
Perhaps I should point out that for every defeat inflicted on Her Majesty's Government over the past few years which has been reversed in another place, there have been many hundreds of instances of your Lordships' amendments being accepted. I could give many examples of that if we had the time.
§ Lord Renton
My Lords, before my noble friend finally sits down, perhaps I may put one further thought in his mind which I am sure he will be glad to have and perhaps declare; namely, that, above all, we are a revising Chamber for legislation.
My Lords, I certainly accept my noble friend's stricture that that is indeed one of the more important functions which we perform and, as we all know, it takes up a great deal of our time. Higher quality legislation will no doubt lead to less time needing to be spent, but it will always be there.
§ 5.31 p.m.
§ Lord Nathan
My Lords, in winding up the debate, I should like to say how very grateful I am for the speech that has just been given by the noble Viscount the Leader of the House. I thought that it was most affirmative and helpful.
I am delighted about two matters in particular: first, the reference right at the beginning of his speech to the dissatisfaction of the House and elsewhere about certain matters, and perhaps I may refer to that word 1327 "elsewhere" in a moment. There were many matters to which he referred which seem to be more than helpful, in particular, that he wishes to return to the subject and aspects of it on future occasions. It is a matter of the very first importance.
I should also like to thank those many Members of your Lordships' House who have participated in this debate. As I said at the very beginning of my remarks, I tabled the Motion not because I knew very much about the subject but because it raises questions of great importance. The Motion was purposely widely drawn into four or five different headings: the Hansard Report itself; the process of legislation; questions of consultation; the position of your Lordships' House; and the questions relating to commencement orders. Those have all been addressed by one or other of your Lordships, or more. They are all important.
The noble Lord, Lord Richard, asked what the problem is, and he then answered the question very clearly referring to questions of legislation. I confess that my problem—and it is the reason that I was so concerned that the matter should be debated, as it has been so excellently in your Lordships' House—is that I am greatly concerned about the decline in the esteem in which Parliament is held by the public as a whole. Therefore, I hope that in order that the public may not be further alienated from the parliamentary process there will be further debate and that the subjects that have been discussed today so interestingly and seriously will be disseminated widely and known publicly so that members of the public may also play their part in the debate. I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.