§ 3.8 p.m.
§ Lord Lester of Herne Hillasked Her Majesty's Government:
§ Whether they will instruct government departments and parliamentary counsel, when preparing legislation, to make clear the intention of Parliament by including statements of purpose as recommended by the Committee on the Preparation of Legislation (the Renton Report, Cmnd 6053, 1974-75).
§ Lord McIntosh of HaringeyMy Lords, I welcome this Question. I regret only that we cannot do justice to it in the limited time available for Starred Questions. Perhaps the noble Lord will consider seeking an opportunity for fuller debate when the Government have had an opportunity to respond to the proposals of the modernisation committee.
Legislation should be as clear as possible, including a statement of purpose, which may sometimes assist clarity but not always. There are dangers. If the statement has legal effect and covers the same ground as later detailed provisions, there is a risk of real or apparent inconsistency. If the statement is not intended to have legal effect, the courts may give it some effect with unintended results. The Renton Report therefore concluded that purpose clauses should be used only "selectively and with caution" and the Hansard Society's 1992 report concluded that they should,
not be adopted as a general practice".
§ Lord Lester of Herne HillMy Lords, I thank the Minister for that open-minded and constructive Answer. In using the word "constructive" I do not intend some not-very-funny legal pun. Does the Minister agree—I believe that it follows from what he said—that it is important to ensure that the law is made as accessible as possible to the citizens and the courts, and that one useful way of doing that is by using a purpose clause, as was done, for example, in Section 1 of the Arbitration Act 1996, which is a rare and outstanding example? Will the Minister also agree with the noble and learned Lord, Lord Goff of Chieveley, in his Wilberforce Lecture last year, when he said:
Even today, it is very difficult for us to persuade our draftsmen to adopt a more open-textured form of draftsmanship designed to identify the underlying principle"?
§ Lord McIntosh of HaringeyMy Lords, I did not say, and the Government do not think, that there is never any advantage in purpose clauses. But there have been very few of them and I believe the noble Lord will agree that for every one that does work there are probably several that do not. The risk of confusion from having a separate statement on the same point is great. That is why both the committee of the noble Lord, Lord Renton, and the Hansard Society argued against it being a general practice.
§ Lord Mackay of ArdbrecknishMy Lords, does the Minister recall that a considerable amount of work has been done on proposals to simplify legislation and to 88 make it more readily readable for the ordinary person and not just lawyers? That is an important way forward. Will the Minister agree with me further that the judgment in Pepper v. Hart means that the gloss, so to speak, put on legislation by Ministers at Dispatch Boxes in both Houses can be prayed in aid in order to understand what the Government intended in framing legislation?
§ Lord McIntosh of HaringeyMy Lords, yes, of course, the pressure for clearer legislation must and will continue. There is no party political point in that regard. In relation to Pepper v. Hart, I remind the noble Lord that when the House of Lords decided that in November 1992, their Lordships said that courts should look at parliamentary materials when (1) legislation is ambiguous, obscure or leads to an absurdity; (2) the material to be relied on is a statement by a Minister; and (3) the statement is clear. Ministerial statements are not always clear.
Lord RentonMy Lords, is the noble Lord aware that too often the intention of Parliament must be inferred from the mass of detail in statutes, much of it being merely hypothetical? That recommendation referred to in the noble Lord's Question was perhaps the most useful and important recommendation made by our committee. I express the hope that the noble Lord will bear that in mind in order to achieve clarity for the benefit of the users of legislation.
§ Lord McIntosh of HaringeyMy Lords, I am delighted to have the noble Lord in his place and I pay tribute to his work and determination over the years. I am aware that his committee put forward the view that on occasion legislation should be declaratory rather than detailed, as is the case in many other countries. The noble Lord has put forward that view on a number of occasions since then. However, I do not believe that it has gained general acceptance. Most people think that it is more important for legislation to be precise and for Parliament rather than the courts to have the last word, so to speak. That is the risk of legislation which is purposive rather than detailed.