HL Deb 26 June 1997 vol 580 cc1647-54

3.38 p.m.

Report received.

Clause 1 [Powers of NHS trusts to enter into agreements]:

Lord Brightman moved Amendment No. 1:

Page 1. line 26, leave out subsection (6) and insert— ("(6) The validity of an agreement which meets the conditions set out in subsection (3) cannot be challenged merely because it has not been issued with a certificate under this section.").

The noble and learned Lord said: My Lords, I believe that plain English should be used in the drafting of Acts of Parliament. My amendment does nothing except turn a subsection of the Bill into plain English. Clause 1 (6) reads as follows: Nothing in this section affects the validity of any agreement made by a National Health Service trust if the agreement has not been certified under this section; but would have been an externally financed development agreement for the purposes of this section if it had been so certified".

The subsection tells us that an uncertified agreement is valid if it would have been an externally financed development agreement for the purposes of the Act if it had been certified. But we know that already. Any agreement is by definition an externally financed development agreement if it is certified as such. Clause 1(2), at line 7, tells us that. It reads: an agreement is an externally financed development agreement if it is certified as such".

So what does subsection (6) really mean?

A lawyer will probably be able to work out what subsection (6) is driving at. But what about the manager of an NHS trust; the manager of a bank which is to put up the money for a development; or the building contractor who will build the new hospital? Will they be certain what subsection (6) means?

They can find out what the subsection is meant to say by coming to the House of Lords, going to the Printed Paper Office and asking for the Notes on Clauses. If they do that, they will read: Subsection (6) … The validity of an agreement which meets the conditions set out in subsection (3) cannot be challenged merely because it has not been issued with a certificate under this clause".

The wording is crystal clear. It is also the precise wording of my amendment. Why can we not have that wording in the Bill?

Subsection (6) is an important provision. Many people involved in the smaller PFI schemes may not wish to go for a certificate if they can safely avoid it because of the delay that may be involved. The Notes on Clauses, and my amendment in the same terms, make it abundantly clear that they can dispense with a certificate if the conditions of subsection (3) are satisfied.

I suggested to the Minister in Committee that the wording of the Notes on Clauses should be used instead of the obscure wording of the Bill. My suggestion received a partial blessing. The noble Baroness said that I raised: an interesting and sensible point".

She helpfully added: anything which adds clarity in that way and simplifies the drafting is entirely to be welcomed".—[Official Report, 19/6/97; col. 1366.]

However, I am told that my wording—the wording in the Notes on Clauses—has been turned down by the parliamentary draftsman.

All I ask now is that your Lordships should say which is plainer English, the provision in the Bill, which states that an uncertified agreement is valid if it would have been an externally financed development agreement if it had been certified as an externally financed development agreement or the Notes on Clauses, and my amendment, which say that, The validity of an agreement which meets the conditions set out in subsection (3) cannot be challenged merely because it has not been issued with a certificate under this section".

I beg to move.

3.45 p.m.

Lord Simon of Glaisdale

My Lords, I support this amendment by my noble and learned friend. We have simply no right to legislate in a manner that is incomprehensible to the people to whom the legislation is addressed and who are primarily concerned, particularly if the matter can be put in lucid and plain terms as it has been by my noble and learned friend, to whom we are deeply indebted. Like many great Chancery lawyers, my noble and learned friend is a gifted draftsman. It behoves us all, including parliamentary counsel, to show a little humility in the face of that.

This is not a new style of drafting. It is a form of drafting based on hypothesis. When I gave evidence to the Renton Committee on the preparation of legislation, I drew attention to a provision in a national insurance Act which went very much on the same lines. I venture to read it: For the purpose of this Part of the Schedule a person over pensionable age, not being an insured person, shall be treated as an employed person if he would be an insured person were he under pensionable age and would be an employed person were he an insured person". Your Lordships will see the relationship between the two styles of drafting.

The matter was put very plainly by my noble and learned friend. It is extremely important because the legislation is a vital part of the process whereby democratic society frames rules which bind of themselves. If the rules are incomprehensible, then the process of democratic legislation has broken down.

The noble Baroness the Minister is perfectly capable of judging this matter for herself. She has noble genes of brains and character built into the double helix of her DNA, which she has cultivated, to our admiration, and demonstrated at both Dispatch Boxes. I say "for herself" because she is indeed left to herself. At the end of every brief that a Minister has are the words: "accept", "reject", or "consider".

Judging by what happened in Committee, I should think it pretty certain that the word "reject" is at the end. The noble Baroness shakes her head. I am very relieved to hear that. In any case, it is for the noble Baroness, who is in charge of the Bill, to accept this amendment if it commends itself to her.

I remember the occasion in the previous Parliament when the noble Earl, Lord Ferrers, was in charge of a Home Office Bill in relation to which the brief undoubtedly ended with the word "reject". He read it solemnly and with increased consternation. In the end he accepted the amendment. I hope that will be a model to the noble Baroness.

Lord Renton

My Lords, I wish briefly, but warmly, to support the amendment moved by the noble and learned Lord, Lord Brightman. The interesting quotation given by the noble and learned Lord, Lord Simon of Glaisdale, was in fact a piece of legislation drafted by a former first parliamentary draftsman who was a member of our committee. We teased him about it a certain amount. He had the grace to say that we should draw attention to it in an appendix to our report—the noble and learned Lord quoted that. He conceded that it could have been done better.

What I find very interesting about the amendment is that the noble and learned Lord, Lord Brightman, was prompted to draft it having studied the Notes on Clauses. The Notes frequently declare the Government's intention as to what the legislation should contain. However, instead of sticking to the simple language of the Notes on Clauses, the draftsman very often thinks that he has to elaborate it in what he considers to be more legal English, and defeats his own purpose in doing so.

I stand open to correction, but I believe that this is the first time that an amendment has been tabled in identical language to that contained in the Notes on Clauses. I hope that the noble and learned Lord, Lord Brightman, has perhaps introduced a useful precedent.

Noble Lords

Hear, hear!

Lord Renton

As the noble and learned Lord, Lord Simon of Glaisdale, said, we have a duty to make our laws easily understood, especially to those who have to observe them. Sometimes our laws are rather technical and those who have to observe them may not have had any kind of legal training. They may be technically excellent in their own work but not in legal matters. It is therefore essential that we should try to get the matter right.

I hope that I am not out of order in concluding with a very general comment. We know from the Queen's Speech that a great deal of legislation will be coming before us, particularly in this Session of Parliament and the next. I believe that we should, as far as we can, follow the example of the noble and learned Lord, Lord Brightman, by being vigilant and trying to improve it whenever necessary.

Lord Hooson

My Lords, from these Benches I congratulate the noble and learned Lord, Lord Brightman, on raising this very important matter. It seems to me that he flatters lawyers when he says that subsection (6) can probably only be understood by a lawyer. I did not understand it; its meaning only became clear when I turned to the noble and learned Lord's amendment. I had not had the wit to go to the Notes.

The noble and learned Lord raises a very important point. We are continuing with an old style of draftsmanship which is no longer relevant or acceptable. The new style, which, on this occasion, happens to have been imported from the exact language of the Notes to help people understand the original draftsmanship, shows that we have reached a watershed. The House and the legislature should consider whether it is time to adopt the new style of direct-approach English imported into the amendment. I am sure that the House will be intrigued to hear the noble Baroness's answer. When a former Law Lord puts down an amendment which he says spells out exactly what the legislature intends, is the parliamentary draftsman's view nevertheless to take precedence?

Viscount Ullswater

My Lords, at earlier stages of the Bill I made a rather narrow point about small PFI projects financed by the contractor or the service provider himself. The Minister replied—I think quite properly—that a certificate would not be required in such instances and that an NHS trust would be entitled to enter into such agreements under the original legislation setting up the trusts. However, I believe that the amendment introduced by the noble and learned Lord, Lord Brightman, gives great clarity to a situation where contractors and the like may be working with a series of contracts, some of which may be externally financed and which may be held up considerably if the contractor has to consider which contracts require a certificate and which do not. I ask the noble Baroness to look again at the clarity of the legislation. It appears from what is said by people much more learned in the law than I am that subsection (6) is not easy to interpret. The point of the amendment is that, however these contracts are made, they would not be ultra vires.

The Bill starts in this House. It may be inappropriate to try to amend it at Report stage here.

Noble Lords

Why?

Viscount Ullswater

My Lords, several speakers have said that the clarity given by the amendment is necessary. If the noble Baroness is not inclined to accept the amendment at this stage, perhaps she should look at it while the Bill is passing through another place.

Noble Lords

No!

Lord Monkswell

My Lords, when my noble friend responds to the debate, perhaps she can clarify one matter. It appears to me that the purpose of the Bill is to provide indemnity for the bankers that a project is certificated and the Government will therefore underwrite it in the last resort.

There is a provision in the Bill which suggests that if a project meets the criteria laid down but has not been submitted for certification, it will be deemed to have a certificate. That is one occasion when a project will not have a certificate. Another is when a project has been refused a certificate by the Government. We need to draw a distinction between a project which meets the criteria and which could expect to obtain a certificate if it had been submitted for one and a project which meets the criteria and has been submitted for a certificate but, for whatever reason, is refused one. That is the crux of the question and I hope that my noble friend can clarify the point. I suspect that the answer may be that the Bill has got it right and that the amendment, which is no doubt well meaning and which provides some clarity, would change the meaning of the Bill.

Baroness Anelay of St. Johns

My Lords, when the noble and learned Lord, Lord Brightman, introduced his first redrafting of subsection (6) at Committee stage, he made the comment that he thought that our deliberations on the subsection would not prove absorbing. My goodness, the noble and learned Lord has been proved wrong today! In Committee the noble and learned Lord set himself the task of rewriting Clause 1(6) so that it had greater clarity. I welcomed his efforts, providing his amendment did not undermine the policy intention of the subsection. The Minister assured us that, the existing text satisfies the reasonable concern that the validity of an agreement which meets the conditions set out in subsection (3) cannot be challenged merely because it has not been issued with a certificate under this clause". She went on to say that the noble and learned Lord's amendment made an unnecessary point in suggesting that, the validity of any agreement into which a trust enters, whether externally financed or otherwise, should not be affected adding that, a trust has express powers to enter into such contracts—under paragraph 16 of Schedule 2 of the 1990 Act which set up the trusts".—[Official Report, 19/6/97; col. 1365.] I was content to accept that explanation as to the legal position and I remain so. But the noble and learned Lord, Lord Brightman, has today provided us with a rewrite of subsection (6) which seems to me, first, to be much clearer and more intelligible than the form in the Bill and, secondly, to meet the points made by the Minister in Committee. The noble and learned Lord spoke in Committee and today about the need to use plain English in legislation wherever possible. Like other speakers, I agree wholeheartedly with him.

When I read Bills I often feel myself transported back some 30 years to my days at university when I struggled with the convoluted syntax of Latin texts. I hope we can escape that one day—30 years on my nightmares ought to have finished. I hope that one day we shall find a way of following the noble and learned Lord's example and write legislation in plain English.

Today, we on these Benches recognise the valuable contribution that the noble and learned Lord has made in rewriting this subsection. We support his amendment.

4 p.m.

Baroness Jay of Paddington

My Lords, the House will not be surprised to hear that, as an active supporter of the Plain English Campaign and a non-lawyer, I am extremely grateful to the noble and learned Lord for his proposed amendment. Indeed, I do understand that it seeks to clarify the Bill. I am also grateful to him for his enormous courtesy in discussing this matter with me before he tabled the amendment and then discussing the exact terms of his amendment once he had done so. The amendment's objective is one with which we are in full agreement. I am grateful to the other noble Lords for their animated discussion of the particular points as they relate to this Bill and even more so for the general points that they raised about the nature of legislation.

Certainly, I do not wish to prolong the debate or appear to raise red herrings in the course of the comments that I want to make. But I am afraid that I may have to be slightly lengthy in trying to explain why, although officials and indeed I myself have spent some time poring over the amendment since the Committee stage, we still have some difficulty with it.

It may help if at the outset I explain a little more about the background to subsection (6). As my noble friend Lord Monkswell, just said, the underlying purpose of the Bill is to meet anxieties about vires raised by certain banks in relation to some of the very substantial PFI projects being promoted by NHS trusts. However—this is a point made by the noble Viscount, Lord Ullswater—as well as those large projects, many agreements of a less costly nature are regularly entered into between NHS trusts and private sector companies, for example, to provide equipment. Although they may seem to have the characteristics of PFI contracts, these agreements have not given rise to any practical concerns about vires. It is not our intention that these less costly agreements should attract the certification procedure of the more costly ones. As a matter of practice, agreements worth less than £1 million may be entered into by some NHS trusts without reference to the Secretary of State.

Clause 1(6)—we are discussing the amendment to it—has been included to displace any doubts which might otherwise arise, by reason of the enactment of the Bill, about the vires of agreements which appear to have the features of PFI agreements but which have not been certified under Clause 1. Our approach in preparing subsection (6) has been to avoid the need to determine whether a particular agreement could or would have been certified had it been put to the Secretary of State for that purpose. Paragraph (b) of the subsection simply recognises that an agreement would have been an externally financed development agreement had it been certified—I agree that the language is cumbersome—but it does not require any examination of the question whether the particular agreement would in fact be eligible for certification—or, indeed, if it were found to be eligible, whether the Secretary of State would choose to certify it.

Against that background, we can now look at the amendment proposed by the noble and learned Lord, Lord Brightman. The amendment sets out to identify the class of agreements to which subsection (6) is to apply by reference to the conditions in subsection (3). At face value, the test whether an agreement meets those conditions may seem to be a convenient and straightforward one. However, on close examination of the conditions, the exercise turns out to be very difficult, because it is necessary first to determine the attitude of the Secretary of State to the particular agreement. Paragraph (a) of subsection (3) requires that: in his [the Secretary of State's] opinion the purpose or main purpose of the agreement is the provision of facilities in connection with the discharge by the trust of any of its functions". So, until one knows the opinion of the Secretary of State regarding the purpose or main purpose of the agreement in question, one cannot tell whether or not the agreement meets the condition in paragraph (a). It was precisely in order to avoid the need to make that kind of detailed and subjective judgment—one might almost call it psychological analysis—in the case of each uncertified agreement that subsection (6) was drafted in its present terms.

I appreciate the considerable efforts which the noble and learned Lord, Lord Brightman, has made in seeking to furnish your Lordships with a provision which, on its face, certainly appears shorter and clearer than the existing subsection (6). I am also conscious—several noble Lords have referred to this point, as did the noble and learned Lord himself in bringing forward the amendment—that this present amendment reflects closely, in fact is similar to and identical with, some of the terms of the Notes on Clauses as they relate to this particular Clause 1(6). But, as your Lordships will know, those notes are not intended to be more than a guide in general terms as to the kinds of agreements to which the subsection is to apply. Inevitably—I am sure that this will have been your Lordships' experience in other Bills—the notes paraphrase and summarise to some degree the actual provisions of the Bill; but they cannot replace them; nor can they be regarded as exhaustive. So it does not follow that a subsection which is drafted in terms similar to or even identical with one of the Notes on Clauses will necessarily be effective as a legal provision. We believe that this amendment gives rise to the practical difficulties that I have described.

I hope that the noble and learned Lord and indeed other of your Lordships who have spoken in support of the amendment will appreciate that, although the language that he suggests is undoubtedly simpler, that simplicity may be an illusion, because it may create further complications in the enactment of the Bill. However, taking due regard of the point made by the noble and learned Lord, Lord Simon, about humility, I am certainly willing to take further what the noble and learned Lord, Lord Brightman, may wish to say.

Lord Brightman

My Lords, I am most grateful to all of your Lordships who spoke in favour of the amendment and for the kind remarks made about my crusade. I wonder whether I understood the noble Baroness correctly. Am I right in thinking that she would be prepared to reconsider this matter and perhaps let me have a word?

Baroness Jay of Paddington

My Lords, that is certainly my intention. I fear that my reading of the brief has been so dominated by legal language that perhaps I was unclear in my response, for which I apologise to your Lordships. I was certainly saying, particularly in reaction to the points made, for example, by the noble Lord, Lord Renton, about the need for clarity in legislation in general and by the noble and learned Lord, Lord Simon, about the need for humility in the face of great legal expertise, that I should certainly be willing to look at this again.

Lord Brightman

My Lords, I am very grateful to the noble Baroness. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.