§ 7.42 p.m.
§ Lord Renton rose to ask Her Majesty's Government whether they will instruct government departments and parliamentary counsel when drafting legislation to include purpose clauses or statements of principle whenever necessary or advantageous for making clear the intention of Parliament.
§ The noble Lord said: My Lords, let me make clear at the outset that this Question is not an implied criticism of the Government. Indeed, much of their legislation is drafted with clarity and certainty of legal effect; but, as with previous governments, some of it is a mass of detail from which the underlying intention of Parliament has to be inferred. The detail can be incomplete and is sometimes uncertain in its legal effect or ambiguous in its meaning.
§ Unlike European legislation, our legislation has traditionally been drafted in detail. That is inevitably so when dealing with taxes, social security and much of the criminal law. It has to be so in statutes which impose rights and duties upon the citizens; the provisions must be stated in detail. However, there has for years been a tendency to mention hypothetical cases to cover a subject in the hope that every circumstance that could arise has been covered, whereas in practice other cases arise which have not been covered by the detail. If examples were needed of that, one has only to look at the ancient and more recent sale of goods Acts, the theft Acts and other legislation.
§ I am glad to see that the noble and learned Lord, Lord Brightman, who was for years a member of the Judicial Committee of your Lordships' House, who attends regularly and applies his mind to our legislation, is to speak in the debate.
§ The Court of Appeal and the Judicial Committee of your Lordships' House spend a great deal of their time trying to find out what Parliament intended by the enactment of detail. They would not have had that difficulty if the intention of Parliament had been made clear. I am sure that your Lordships will agree that there are three ways of doing that: one is by statements of purpose, another is by statements of principle and the other is through interpretation clauses.
§ Those three possibilities were considered by the Committee on the Preparation of Legislation, of which I had the honour to be the chairman. That was the only inquiry into our methods of drafting legislation since 1875. There were 14 members of the committee, including the present Leader of your Lordships' House; the noble Lord, Lord Henderson of Brompton, who I am glad to say will be speaking next in the debate; four parliamentary draftsmen, or lawyers who had been parliamentary draftsmen, who were able to give the committee the benefit of their experience, one of whom was a Queen's Bench judge; a Scottish lawyer who became a Lord of the Court of Session; and the late Duke of Atholl, who was, among other things, a publisher with expert knowledge of computers. These, at the time we were sitting—now a quarter of a century ago—were, though not in their infancy, not as 1584 widespread a method of, dare I say it, codifying the law or at any rate making it easily available, as is the case now.
The report of the committee contained 121 conclusions, including 81 recommendations for change and, we hoped, improvement. Of those 81 recommendations, as I understand it, only 39 have so far been regularly implemented. Two recommendations—the most important ones, in my opinion—were largely ignored: Recommendation No. 13 on statements of principle and Recommendation No. 15 on statements of purpose. Those recommendations appear on page 150 of the report and I shall take the liberty of reading them to your Lordships. Recommendation 13 states:
The use of statements of principle should be encouraged; where detailed guidance is called for in addition, it should he given in Schedules".
Of course, we have lengthy schedules attached to some Bills, but a lot of detail goes into the clauses as well. Recommendation 15 states:
Statements of purpose:
I should mention in passing that we did not favour the use of preambles, as is required in European Union legislation.
§ The committee did not dwell on Long Titles, which normally state in broad terms the matters included in the Act. They do not often declare the intentions of Parliament; but I am glad to say that sometimes they do. I hope it will not be immodest of me to give an example.
The Sale of Goods (Amendment) Act 1994, which I introduced into your Lordships' House, states in the Long Title,
An Act to abolish the [defence of] market overt".
That clearly defines the purpose of the Act. I must confess that in that short Act nothing else was mentioned about "market overt"; it merely repealed the sections of the Sale of Goods Act which gave rise to market overt. However, the intention was clear in the Long Title, and better there than nowhere.
§ So much for our committee. I should mention that in 1991, for 12 months—half the time that we sat—the Hansard Society held an unofficial inquiry of which my noble friend the late Lord Rippon of Hexham was chairman. It too had a powerful membership. Though it disagreed with our committee on the value of statements of principle and of purpose, Lord Rippon told me some months before he died—I hope that I am not doing wrong in mentioning this because he attached great importance to it—that on reflection he felt that his committee had been wrong in devaluing statements of purpose and of principle. He came round to the view that when a statute contains a mass of detail it would help to understand it if the principles underlying the detail were clearly expressed in one way or another.
§ A few people, including some members of the Hansard committee, have expressed doubt about statements of purpose and of principle. But I challenge 1585 anyone to mention any such statement which has done harm. In practice, all statements of purpose and of principle have been useful in helping people to understand and interpret the legislation. I discussed that with various judges and Law Lords and not one of them mentioned a statement of purpose or of principle which has caused any problem.
Instead of presenting a purely negative view of the problems of detail, perhaps I may give some examples of how to deal with them. A classic example is contained in Section 1 of the Children Act 1989, which states:
When a court determines any question with respect to the upbringing of a child … the child's welfare shall be the court's paramount consideration".
That states the purpose of the Act. It is both a statement of principle and an interpretation clause, and later sections set out the detail.
The Civil Liability (Contribution) Act 1978 states:
A person is liable in respect of any damage for the purposes of this Act if the person who suffered it … is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise)".
§ That is another clear statement of purpose.
Best of all I like the example in the Transport Act 1978, which states:
It shall be the duty of the Secretary of State to promote a national policy for the use of inland waterways for commercial transport".
It stood by itself. There was no detail to follow. That is a clear statement of what a Minister should do. The next clauses in that Act deal with other matters, especially British Rail.
§ My time is up. In conclusion I should say this. I hope that the Government will, in the interests of all the people who are subject to our laws—laws passed by Parliament—accept the constructive suggestions which will be put forward in this debate for removal of doubt and to enable justice to be done more expeditiously.
§ 7.55 p.m.
§ Lord Henderson of Brompton
My Lords, I am greatly honoured to have been mentioned by the noble Lord, Lord Renton. I enjoyed, all those years ago, serving under him on the committee concerned with the preparation of legislation. I remember, though it is a long time ago, that this was one of the recommendations on which we were most keen. We all subscribed to it, even parliamentary counsel whom we were not expecting to do so.
I should like to speak briefly and, first, to add to the list of purpose clauses given by the noble Lord, Lord Renton, and bring his list up to date. I hold in my hands a very good Bill, beautifully drafted, entitled the Crime and Disorder Bill. It is crystal clear and Part III concerns the criminal justice system and youth justice. Clause 28(1) states:It shall be the principal aim of the youth justice system to prevent offending by children and young persons".1586 What could be clearer than that? There is a second subsection which states:In addition to any other duty to which they are subject. it shall he the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim".Again, that is a simple, clear, valuable instruction. Perhaps the office of parliamentary counsel is at last coming round to our view, as would appear to be the case from the superb example before us in this very Session.
Other aspects of our work all those years ago are also reflected in that Bill. We said that we wished for the use of ordinary language so far as possible. The Bill gives an admirable example of beautifully clear language throughout. But in addition to that, the draftsman has almost completely avoided Latin. Clause 27 says, in perfect English,The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished".However, he slips in a sidenote which says,Abolition of rebuttal presumption that a child is doli ineapax".One must forgive him for that; one does not want to make sidenotes too long. However, he neatly escaped using Latin in the text, for which I commend him.
The other comment I should like to make about the Bill before I sit down is that it is beautifully articulated. Again, that is something which parliamentary counsel have practised for many years; but this Bill is so well written that one can find whatever one wants at a moment's notice. For that reason, I greatly commend it.
I shall not take up any more of your Lordships' time except to say one other thing. The Bill is not only impeccably drafted, using short sentences and short words, but there is also provision that,a court shall explain to the offender in ordinary language",a, b, c, d, e and To use ordinary language to young people is surely right. That deserves our applause.
§ 8 p.m.
§ Lord Mackay of Drumadoon
My Lords, I begin my short contribution to the debate by expressing appreciation to the noble Lord, Lord Renton, for putting down this Question. When I was first introduced into your Lordships' House, the noble Lord, Lord Renton, was absent, recuperating from illness. In his absence many of my new colleagues talked with great affection about the noble Lord—about how well his recovery was going and how much they were looking forward to his being back among us. When he reappeared and I met him for the first time it was obvious to me not only that he was indeed restored to very robust health but why my new colleagues appreciated his contributions to our deliberations. He introduced himself to me. He handed me a copy of a lecture which he had recently delivered and commended it to me. I also became aware of his report.
As the noble Lord rightly mentioned, the committee which assisted him in the preparation of the report contained a number of distinguished lawyers and parliamentarians. He was kind enough to mention the late Lord Stewart, a former Solicitor-General for 1587 Scotland, who was elevated to the Bench and whose substantial career as a judge in Scotland was unfortunately brought to a premature halt by a serious illness and then his comparatively early death.
It is a great advantage to all that the Renton Committee report has recently been reprinted. I suggest that it should be compulsory reading for all new government Ministers and should certainly be introduced to new Members of your Lordships' House if they are minded to take an active interest in the detail of legislation. Among other things, it discusses the two topics which give rise to this Question.
In a debate earlier this week on the Human Rights Bill I made mention of the Church of Scotland Act 1921. I do not intend to rehearse the substance of the argument I advanced on that occasion but those noble Lords who have a moment might care to have a look at that short Act. It is a good example of an Act containing statements of principle and purpose clauses. The style used of putting some of that in the preamble is not one that would necessarily commend itself to Members of the Committee, but the Act follows such an approach.
The preamble set out the history of what had led up to the enactment of the Bill. The Church of Scotland was interested to unite with other Churches in Scotland and had prepared certain declaratory articles which were acceptable to them and which were in fact set out in a schedule to the Act. It stated:Whereas it is expedient that any doubts as to the lawfulness of the declaratory articles should he removed, be it therefore enacted".Nothing could be clearer. Then, bold as brass, Section I began:The declaratory articles are lawful articles".As the noble Earl, Lord Russell, reminded us earlier in the week when we were discussing the matter, it is important to remember the history that lies behind a statute. It is one of the purposes of legislation to put into effect what history has agreed should happen. I therefore suggest that it is an Act which may be of some assistance.
In considering what I might contribute to this debate I had occasion to read again the speeches of the members of the Appellate Committee in the case of Pepper v. Hart, which was decided in 1992. I was interested to be reminded that the noble Lord, Lord Lester, appeared for one of the parties in that case. Curiously enough, I was surprised to learn that the Renton Committee set its face against the approach eventually decided by the Appellate Committee of relaxing the rule which had previously prohibited reference to parliamentary materials in the course of litigation. The relaxation introduced by that case, in seeking to help the courts determine the true purpose of legislation, is an objective served by a greater use of purpose clauses and statements of principle. They are of assistance not only to lawyers and judges but to those members of the public who have occasion to read and study the detail of legislation. As members of our society become more rights conscious, to use a somewhat colloquial expression which I do not use in any derogatory sense, it is very important indeed that 1588 laymen reading Acts of Parliament should have a clear idea when they have finished the exercise what the purpose of the legislation is. The detail, as the committee recommended, should be put in schedules; the main principles should be set out loud and clear.
I hope I will be forgiven for straying slightly from the remit of the debate to mention a matter on which I should be most interested to hear the Minister's comments. I refer to the progress in achieving a statute database. It would be of tremendous assistance to members of the public to have all current statutes available on a database which could be called up by those literate in information technology in the same way as those interested in parliamentary debates can call them up the following morning.
In my legal career, both as a solicitor and a counsel, I have been involved in many situations where I have discussed with colleagues how we were going to take a matter forward—whether it be the drafting of a contract or some form of agreement, whether it be the formulation of written pleadings, or whether it be the preparation of a letter to be sent on behalf of one's client. Frequently I found myself saying, "Let's just set it down in outline, set out the basic principles of what we want to say, and see what it looks like". I have then been pleasantly surprised to discover that that approach has cut through endless discussions and has shown the way forward. That is a useful guide to how the greater use of purpose clauses and statements of principle could be incorporated in the legislation which lies ahead.
It was my privilege, over the two years leading up to 1st May, to work fairly regularly with Parliamentary Counsel. Contrary to the impression one sometimes gets from reading what judges say about them, they are very able, go-ahead and imaginative individuals who frequently have to encapsulate in the space of a few hours some change of policy on the part of Ministers. If they are encouraged by Government to take forward the approach advocated by the noble Lord, Lord Renton, they will not be slow to take up the challenge. I hope they receive that encouragement. I very much look forward to the Minister assuring the House that he and his colleagues are minded to do so. There is little to be lost and possibly much to be gained. Therefore, I support the noble Lord, Lord Renton, in bringing forward this matter for debate.
§ 8.10 p.m.
§ Lord Brightman
My Lords, I am immensely grateful to the noble Lord, Lord Renton, for raising this Question. It gives me one more opportunity to plead that Acts of Parliament should be drafted in a form which enables them to be readily understood by those who need to read them. The Renton Report recommended in paragraph 11.8 that statements of purpose should be used when,they are the most convenient method of delimiting or otherwise clarifying the scope and effect of legislation".That was a unanimous recommendation of a most distinguished committee. The committee included not only a future Clerk of the Parliaments and First 1589 Parliamentary Counsel, but also the present Lord Privy Seal. The report came before the other place in November 1975.
The recommendation was described by the then Solicitor-General, now the noble and learned Lord, Lord Archer of Sandwell, as one ofthe most significant of the Committee's proposalsof which there were in fact over 100. So this recommendation was among those which topped the list. The wording of the Question in the name of the noble Lord, Lord Renton, to the Government is, to all intents and purposes, the same as the unanimous recommendation of the Renton Committee. Having regard to the distinguished authorship of the recommendation and the importance ascribed to it by the eminent Solicitor-General, it hardly seems necessary to say more in order to secure from the Government a sympathetic answer to the Question posed.
But to add a shade more emphasis, perhaps I may quote from a report from December 1995 by the Inland Revenue. Under Section 160 of the Finance Act 1995 the Revenue were required to prepare a report on the simplification of the tax legislation, to give a summary of recent criticism of tax legislation and parliamentary procedures, and to suggest solutions. The Revenue produced a report of some 35 pages. In paragraph 6.14 the Revenue advised that,Incorporating various signposting techniques into legislation could … make it easier for readers to find their way around the tax code. Examples include purpose clauses".I appreciate that that advice was given in the context of tax legislation. But there is nothing peculiar to tax legislation: it is complex, like most legislation.
A striking example of this House insisting on the inclusion of a purpose clause was provided by the debates leading to the Legal Aid Act 1988. The noble and learned Lord, Lord Mackay of Clashfern, moved an amendment to his Bill at Third Reading. The amendment read as follows, under the rubric "Purpose of this Act":The purpose of this Act is to establish a framework for the provision … of advice".The noble and learned Lord added that at the Committee stageThe inclusion of a purpose clause was supported by speakers from all sides of the Committee and I took note of the feeling of the Committee".—( Official Report, 29/2/88; col. 10.]It is remarkable that a purpose clause was inserted into that Bill at Third Reading as a result of pressure from this House.
It is axiomatic that every Bill has a purpose. Parliamentary draftsmen, Ministers and their officials should, in my respectful submission, always ask themselves, except in the most obvious cases, whether a statement of purpose would or would not make the 1590 Bill more user friendly. In the case of a complex Bill—and so many of our Bills are complex—the introduction of a purpose clause,when advantageous for making clear the intention of Parliamentcan only be helpful to the reader.
While on the subject of purpose clauses I should like to say a word about Notes on Clauses. I have been told, as a result of inquiries that I have made today, that Notes on Clauses are produced for all Bills, but are not released until Second Reading has taken place.
A modernisation committee was set up in the other place last year when Notes on Clauses came under review. Evidence was given to that committee by Mrs. Justice Arden, the chairman of the Law Commission. In her evidence Mrs. Justice Arden said this:Time might … be saved if some assistance was given by way of explaining the purpose of the bill and its various provisions. Bills are written in a precise and formal way which does not easily lend itself to narrative or statements of principle … Members of Parliament receive notes on clauses, and members of the public can apparently now obtain these. Following the recommendation of the Hansard Society Commission in 1992, it would be helpful to those outside Parliament who are concerned with a bill as it goes through Parliament if these notes on clauses were published in the same way as the Bill itself. … To be of significant use they would need to be published some time in advance of the debates on the bill".That is to say, not only after Second Reading.
The value of Notes on Clauses was demonstrated earlier in this Session. The Bill in question was the National Health Service (Private Finance) Bill. An early provision provided that an agreement wasan externally financed development agreementif so certified by the Secretary of State. Clause 1(6) then read,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".None of us could understand what Clause 1(6) was getting at. The noble and learned Lord, Lord Simon of Glaisdale, said that Clause 1(6) was "incomprehensible". The noble Lord, Lord Hooson, a Queen's Counsel of many years standing, said that he did not understand it. Nor did I.
Fortunately, Notes on Clauses came to our rescue at Report stage. These expressed the purpose of this obscure clause; namely, that,The validity of any 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".That made the purpose of Clause 1(6) crystal clear. In the outcome, the subsection was amended virtually in the same terms as the Notes on Clauses. What is manifest is that, if the purpose of the subsection had not been stated, an incomprehensible provision would have been foisted on the public.
I conclude by recalling the immortal words of Mr. Peyton, the Member for Yeovil, in the debate in the other place on the Renton Report. He first recited a passage in the report which read:The internal structure of, and sequence of clauses within individual statutes is considered to be often illogical and unhelpful to the reader".1591 The noble Lord, Lord Peyton of Yeovil, as he now is, then commented:What a wonderful choice of words. To describe our modern statute law as 'often unhelpful to the reader' is one of the most charming pieces of understatement that I have ever come across".—[Official Report, Commons, 3/11/75; col. 123.1
§ 8.21 p.m.
§ Lord Lester of Herne Hill
My Lords, I follow all noble Lords who have spoken in expressing my great gratitude to the noble Lord, Lord Renton, for initiating this debate. I should like to thank also the noble Lord, Lord McIntosh of Haringey, who is to reply in a few moments, for having encouraged the debate at an earlier stage in answer to a Question that I asked some time ago. I join other noble Lords in also paying tribute to the noble Lord, Lord Renton, who is the most eminent authority in this area not serving on the Bench and whose report is a memorable and enduring state paper. I always re-read it with interest and pleasure and I hope that that is true of others.
Perhaps I may first repeat some platitudes which may deserve to find their place in the record. I do so with great humility, following the noble and learned Lord, Lord Brightman, whose judgments in this area, inside and outside court, cannot be improved upon. An Act of Parliament takes effect through the language in which its principles and rules are expressed and through their proper interpretation by the courts. It is essential therefore, for reasons of legal certainty and the rule of law, that legislation should be drafted as clearly as possible in ordinary language and in a manner which reflects the objects and purposes of Parliament in using its sovereign power to make the law of the land.
A literal interpretation of statutory language encourages excessive statutory detail and complexity and breeds legalism. That has been recognised in recent years by our courts which have adopted a purposive approach rather than an approach which is narrowly textual and literal. Our courts have come, in my lifetime, to recognise, in the words of a great American judge, that they should not make,a fortress out of the dictionary",but should attempt to interpret statutes in a commonsense and purposive way. They should assume—it is a large assumption—that Parliament intends to use its powers fairly and rationally, with due respect for basic constitutional rights, and in accordance with the international obligations to which we are party.
The courts understand that words cannot, to quote the noble Lord, Lord Henderson of Brompton, always be "crystal clear" because words are not like crystals. They are not hard and rigid in their substance. They are softer and more malleable. Nuances require to be interpreted according to a wide range of meanings. That task of judicial interpretation calls for great skill and sensitivity on the part of the judges, but the courts cannot perform that task without an effective partnership with the executive and legislative branches of government.
Legislation must be skilfully drafted. It must be enacted only after careful scrutiny by the Executive and the legislature. I, too, pay tribute to the great skill and 1592 imagination of parliamentary counsel but, because of the great pressures placed upon them by the enormous volume of legislation, that legislation is not always as well drafted as it should be, to use an understatement. It is too detailed, too verbose and too obscure. What is more, as the noble and learned Lord, Lord Goff of Chieveley, observed in a recent lecture: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".The central issue raised by the noble Lord, Lord Renton, is whether the courts and ordinary users of legislation would be assisted in understanding the meaning of an Act of Parliament if it contained a clause stating the purposes or principles. Perhaps I may add to the examples that have been given by citing a recent one which, for my purpose, is an example of a perfect statement of principle which really does assist.
The Arbitration Act 1996 was quite exceptionally well drafted, under the leadership of the noble and learned Lord, Lord Saville. Section 1 contains the following words:The provisions of this Part are founded on the following principles, and shall be construed accordingly—That section is unusual in UK legislation but, in my view, it is a most welcome feature of the drafting of that Act. It sets out three general principles, and all the provisions of the Act must be interpreted with those principles in mind. It will greatly help the courts and, even more, it will greatly help the users of that Act.
- (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;
- (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;
- (c) in matters governed by this Part the court should not intervene except as provided by this Part".
Of course, as I am sure the noble Lord, Lord Renton, recognises, such a clause is not a panacea and, of course, cannot be automatically required for all statutes, but there are some situations where it performs a vital function. The committee of the noble Lord, Lord Renton, was surely right to observe in 1975 that statements of this kind should be used when they are the most convenient way of clarifying the scope and effect of legislation. As the report indicated, they must not, however, degenerate into pious incantations, such as "Hurray for Nature!" in an environmental statute, or into a mere manifesto. The touchstone is whether they are a useful aid to the courts and the public in discovering and clarifying the scope and effect of legislation.
There was one situation in which the Renton Committee recommended (in paragraph 19.39) that purpose clauses should be used in general practice—that is, regularly. I refer to where legislation is intended to implement a treaty provision or a European Community instrument. I endeavoured to explain during the debate on the Human Rights Bill on Monday (col. 1257)—that Bill seeks to give effect to our international treaty obligations—why, in my view, and in the view of others who are older and much more learned than myself, such statements would greatly assist in interpreting the 1593 purpose of that brilliantly drafted, great constitutional measure in securing the rights guaranteed by the European Convention and providing effective domestic remedies. It is an awkwardness that the Prime Minister and the White Paper state the purpose clearly, but that one has to link what the Prime Minister says in the preface and what is said in the White Paper because the purpose cannot be gleaned simply from reading the Bill. That is unfortunate.
To understand the object and purpose of legislation is also essential for Ministers, civil servants and other public authorities so that they understand the proper scope and limits of the public powers delegated to them by Parliament. If a public officer or body acts in a way that is beyond the object and purpose of a statute or in a way that frustrates the statutory object and purpose—if administrative action is outside the four corners of the statute—there is a misuse of public powers amounting to illegality. One further vital function of a purpose clause is to assist in understanding the scope and limits of delegated powers.
Reference has been made to the report of the Hansard Society Commission chaired by the late and much missed Lord Rippon of Hexham. It did not believe that statements of purpose should be adopted as a matter of general practice but preferred another means of achieving the same result, which has been referred to by the noble and learned Lord, Lord Brightman; namely the publication and use of up-to-date Notes on Clauses. Speaking as the guilty counsel in Pepper v. Hart who persuaded the Appellate Committee of the House of Lords to change the two centuries old rule excluding all reference to the parliamentary record in construing dodgy legislation, I now find it wholly irrational that the courts are entitled to read what the noble Lord, Lord McIntosh, says to elucidate what a Government measure means but cannot yet read Notes on Clauses which the Government produce to guide the House on the meaning of the statute.
The Minister has indicated in a Written Answer that this matter is already under consideration by a committee of the other place. I am sure that he would have been as surprised as I was to discover at a conference in Cambridge on Saturday that Notes on Clauses for the Scotland and Wales Bills on devolution had been sought by practitioners and others in Scotland and Wales in vain. They have had the greatest difficulty in discovering them. It appears that the Stationery Office is to print them and charge the public a price to obtain them. I find that quite objectionable, as I do the selling of statutes. If we are to have Notes on Clauses updated in the way that Dame Mary Arden and Lord Rippon's commission recommended—I strongly urge that we should—I hope that they will be updated, made available at an early stage as she has indicated and provided to the public free not only on the Internet but in hard copy.
Finally, there must be a holistic approach. A whole range of recommendations is made by the Hexham Commission in addition to this which desperately requires implementation. I do not believe that that will happen until there is a Minister in charge of the subject. I had the honour to work for the noble Lord, Lord
1594 Jenkins of Hillhead, when he was Home Secretary on some civil rights Bills in the mid-1970s. I well remember consulting the Attorney-General because of defects in the drafting of the first clause of a Bill. He told me that he agreed entirely but that only the Prime Minister could do anything about it. He could not do anything with parliamentary counsel; he had a file as thick as my hand of his correspondence with parliamentary counsel. That is not satisfactory. I very much hope that the Government will keep their mind ajar on whether it is now sensible for the Law Officers to have responsibility in this area working with the Legislation Committee.
I have taken my time and have ranged slightly beyond the Question before the House this evening. I have done so because I believe that the Question tabled by the noble Lord, Lord Renton, raises other linked questions and that what he seeks to do—to help the courts and the public—will be achieved only by a combination of measures including purpose or principle clauses.
§ 8.34 p.m.
§ Lord Henley
My Lords, I begin by offering an apology to the noble Lord, Lord McIntosh, my noble friend Lord Renton and the House as a whole for the fact that I appear at the Dispatch Box for the Opposition rather than my noble friend Lord Kingsland, who is considerably more expert on this matter than I am. I also apologise to the House for my inadequacies in dealing with matters as technical as this. I offer thanks to my noble friend Lord Renton for initiating this debate and, as a result, encouraging me to take a look at the sections of his report, which is now some 22 years old, dealing with purpose clauses. I offer my apologies again and associated contrition for the fact that I never did read them in the days when I was in government. I am sure that the noble Lord, Lord McIntosh, will take note of the advice from my noble and learned friend Lord Mackay of Drumadoon and, if he has not done so already, will read this report frequently, have it by his bedside and, as the noble Lord, Lord Lester of Herne Hill, put it, consult it with great regularity.
That said, much of what I wanted to say has been said probably far more elegantly by the noble Lord, Lord Lester of Herne Hill. It is not often that we agree on most matters. Apart from following him on his latter points, on the substance of his comments on purpose clauses I am in full agreement. They can and should be used on a number of occasions. But he was right to draw the attention of the House to those parts of the report where various advocates in one form or another point out the limits of the uses of purpose clauses. As did the noble Lord, Lord Lester, I refer to paragraph 11.7 on page 63 of the report, where a number point out the dangers of using these clauses on certain occasions. For example, parliamentary counsel took the view that in many cases the aims of the legislation could not be usefully or safely summarised or condensed. There might be a temptation to call for something which was no more than a manifesto which obscured what was otherwise precise and exact. The noble Lord quoted the excellent comments of Professor Reed Dickerson about such clauses degenerating into pious incantations and 1595 the danger of such remarks amounting to no more than "Hooray for nature!" in a recent ecology Bill which was referred to in that particular report.
I appreciate that purpose clauses can and should be used on occasions and can be of enormous help in assisting courts to interpret statutes that come before them. Only on Monday we saw the difficulty that could arise in interpreting Bills as they are perused and go through the House. The noble Lord, Lord Lester, will remember that in relation to one amendment the Government offered a concession to the noble and learned Lord, Lord Simon of Glaisdale, which took a good half hour of our time. The argument appeared to be whether a clause should contain the words "one or' or the indefinite article "a". I did not exactly follow the details of the arguments in relation to that particular amendment. It may be that there was considerable substance in them, but I have some doubts as to whether it was necessarily a good use of the time of this House. I also have some doubts as to whether the courts would not find equal confusion whichever set of words was used. Certainly there would be occasions when the job of the courts would be made easier should purpose clauses be followed.
Having said that, for fear that the noble Lord interprets all that I have said as the policy of these Benches and criticises me and my party when in government for not making adequate use of purpose clauses, I stress that on this occasion I speak very much for myself. I had the honour to bring a large number of Bills before the House in my time as a Minister. I suspect that it was only on very rare occasions that there was a purpose clause or even a whole series of purpose clauses in those Bills. I have a sneaking suspicion that a great many of them might have been considerably improved should that have been the case. I am here largely to listen to the response of the noble Lord. Lord McIntosh, and I very much look forward to it. I thank my noble friend Lord Renton for introducing this debate.
§ 8.40 p.m.
§ Lord McIntosh of Haringey
My Lords, let me start by reassuring the noble Lord, Lord Henley, that there is no party political element in this debate. I have to respond on behalf of government, and therefore I have to be circumspect in what I say, but nothing that I am going to say has, and nothing that any noble Lord has said in this most interesting debate has had, any reference to party politics. I am especially grateful to the noble Lord, Lord Renton, for coming over to assure me that that was not his intention. I was able to assure him that it would never have been my intention in responding to the expert contributions of noble Lords. I believe that all noble Lords are legally qualified, although I am never quite sure about the noble Lord, Lord Henderson of Brompton.
§ Lord McIntosh of Haringey
But the noble Lord did spend a working life in the service of this House, in 1596 which case he must have acquired and forgotten more knowledge of the law than formal lawyers have ever learnt. I am, I insist, unique in this debate as a genuine layman.
The starting point for our debate has been the phrases "statements of principle" and "statements of purpose", although the Order Paper reads:purpose clauses or statements of principle".Those phrases are often used interchangeably, although not by the noble Lord, Lord Renton, as he made clear, or by some other noble Lords. The phrases are also used in different ways by different commentators.
That point was illustrated as recently as Monday of this week, as the noble and learned Lord, Lord Mackay of Drumadoon, reminded us in the debate on Amendment No. 1 moved by my noble friend Lord Mishcon during the Report stage of the Human Rights Bill. As your Lordships will recall, during that debate a number of definitions were advanced to describe statements of purpose or principle. My noble friend Lord Mishcon referred to a summary of,the main purposes of an Act and not to include in that summary exceptions that there may he or other provisions of a fairly minor character".My noble friend Lord Williams of Elvel, who moved an amendment to the proposed purpose clause, referred to the desirability of,a general expression of the content of a Bill".The noble and learned Lord, Lord Simon of Glaisdale, spoke of capturing,the general spirit of the Bill".The noble Lord, Lord Campbell of Alloway, referred to statements of purpose as "aids to understanding" which would "resolve doubts and ambiguities" and,limit or clarify the scope and effect of legislation".—[Official Report, 19/1/98: cols. 1257–12611The noble Lord, Lord Lester, who was quoting the noble Lord, Lord Renton, referred to the desirability of purpose clauses in cases where legislation is fulfilling international treaty obligations. He reminded us of that this evening. The noble Lord, Lord Renton, himself emphasised the importance of helping users of legislation—not just judges and lawyers—but,all those who are subject to legislation or need to enforce it as laymen".It seems to me that there are at least three distinct things which are covered by the phrases "statement of purpose" and "statement of principle". A first meaning is a reader's guide to the material in the rest of the Act. Such statements are not intended to have any legal effect.
The second meaning is guiding principles according to which the rules set out in the legislation are to be interpreted and understood. In this case a legal effect is intended: the statements are there to condition how the courts construe the legislation. As the noble and learned Lord, Lord Simon of Glaisdale, put it on Monday,It is an aid to interpretation; and it is nothing else.1597 This sort of clause might also convey something about the wider policy context of the legislation—the behaviour or consequences that Parliament wishes to discourage or promote by means of the legislation. A number of examples of that have been given, notably by the noble Lord, Lord Henderson, in his admirable exposition of the Crime and Disorder Bill.
The third meaning is that an Act should begin by stating general rules, like Euclid's axioms, with the subsequent detail in the Act showing, like Euclid's theorems, how those general rules apply in particular circumstances. Starting off with explicit general rules, the argument goes, may make the detailed rules easier to grasp and will also provide a basis for settling cases for which no detailed provisions have been made.
Before I discuss these three meanings, there is a separate approach which I should mention briefly—"general principles drafting. This is confining legislation to general rules and leaving their application in particular circumstances to administrative action or to the courts. This approach is said to be more used in some other countries which have different constitutions and traditions. I am conscious that legislation presented to the French legislature is called a projet de loi, rather than a law itself. That implies to me some element of incompleteness, compared with the way in which we approach legislation.
Be that as it may, this approach has been little used in our legislation in modern times, because of the dangers involved. They could include creating uncertainty about what the law is in particular circumstances; more frequent litigation because of the uncertainty, increasing the cost of complying with the law; and a substantial shift in the balance of law-making from Parliament to the courts or to the executive. Few people have argued for a move to general principles drafting in the radical sense that I have described.
§ Lord Lester of Herne Hill
My Lords, I am grateful to the Minister for giving way. Might I give him an example to illustrate the real difference between principles drafting and highly detailed drafting that leads to the disease of legalism, unnecessary litigation and uncertainty. It is the example that I was giving about my visit to the Attorney-General, Sam Silkin, and so it is quite a good one to take. If you look at the definition of "unlawful discrimination" in Section 1 of the Sex Discrimination Act, it reads like something out of Euclid or out of an income tax statute. There is a highly technical, rigid, formalistic statement of the definition of what is known in the trade as direct or indirect discrimination.
Words such as "requirement" or "condition" are used. It is very specific language. That has led to 20 years of dispute in the courts in this country and in Europe. If, instead, general principles had been used for the key definition of discrimination, and looser language—for example, "substantial disadvantage", "less favourable", and so on—I should have earned a good deal less money arguing in the courts, but, what 1598 is more important, we would have managed to make the legislation work well. The Attorney-General agreed with that, but he could not get the drafter to see that more general principles language was in order. I am sorry to detain the House with the example, but I am trying to illustrate the difference.
§ Lord McIntosh of Haringey
My Lords, heaven forbid that the noble Lord should be prevented from earning the money in the courts that he so richly deserves. It will not be part of my position that there should never be purpose clauses or statements of principle. Of course I am always interested in further examples which appear to support the appropriate use of purpose clauses.
I think, as I shall suggest later, that the argument is by no means as clear as has been indicated by a number of noble Lords who have spoken. I was speaking about general purpose drafting which is rather different from the point that the noble Lord was making. It is general drafting in the sense that it is a statement of general purpose instead of the more detailed drafting of legislation. I always sympathise with those who argue for shorter and clearer legislation. That is never in doubt, hut when the noble Lord, Lord Renton, refers, as he did in his Statute Law Society lecture, which he was good enough to send me, in his fourth recommendation, to the desirability of more general purpose drafting, I believe that he will agree that that was not the conclusion of the Renton Committee in 1975. There was not a general view that general purpose drafting in place of detailed drafting was a desirable procedure.
My Lords, I hope that I have not at any time misled anyone. I have never taken the view that the aim of purpose clauses was to dispense with detail. It was to lead to a better understanding of detail that such clauses have, within my knowledge, always been recommended.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the noble Lord for that clarification. I have listened to him on the subject with respect for 15 years and if I have ever misunderstood him, I am deeply sorry. There has been support this evening for including in legislation statements of principle or purpose in one of the three categories that I described at the beginning of my remarks. The objective of the first type of statement is to help the reader and the user of legislation to understand it more easily by providing an overview of what the legislative text covers. The issue is not whether this kind of information would help the readers and users. Clearly, it would. The issue is whether it should be included within legislation or provided separately.
Although such material would not be intended to have any legal effect, the courts may nonetheless give it a legal effect because it is part of the legislative text. Whatever effect they give it will necessarily be wrong because the material was never intended to have any legal effect. Generally speaking, therefore, the Government's view is that material which is there 1599 to inform, but which is not intended to have legal effect, should be provided separately and not included in the legislation. I will come back to the point about Pepper v. Hart in a minute.
The other two categories of material were "guiding principles" for interpreting the text and "statements of principle" on which the detailed legislation was based. Both those are obviously intended to have a legal effect and, when used, should therefore certainly be included in the legislation.
Both sorts of material can be found in various Acts in recent years. A number have been referred to in this debate and I have ready a file on others in case of a challenge. However, there is good reason not to include such statements in Acts as a routine practice.
As to guiding principles, the danger is that they may be open to interpretation in many ways. The result is vague law: citizens cannot know with any certainty how it affects them in their particular circumstances. That approach can have a place, but it must be used with great caution and in appropriate cases, where Parliament wishes to condition the discretion it gives to the courts.
As to statements of principle, the problem arises from duplication. There is a real risk of inconsistency between the statement of principles and the detailed provisions in the Act, because the same thing is being said twice in different words. That view has been taken by successive Governments and they have been supported by the two major reports on the law-making process to which reference has been made.
With great trepidation in the presence of the noble Lord, Lord Renton, I must remind him that, although he set out his committee's recommendations Nos. 13 and 15 upon statements of principle and statements of purpose, paragraph 11.8. of his report concluded—and I understand that it was a conclusion of the report itself—that such statements should be used only "selectively and with caution".
We must be particularly cautious about that, when we are told by a number of people, including, on Monday, noble Lords such as the noble and learned Lord, Lord Browne-Wilkinson, that a purpose clause can do no harm and might do some good. There are circumstances when a purpose clause could do harm, I think, if it brings in contradictions within the text of the law between a general statement and the detailed description.
The Hansard Society committee has been described as "unofficial" but it is still pretty authoritative. In 1992 its report concluded:they should not be used as a general practice".So the jury is still out on some of the issues, I suggest.
However, more light will be thrown on these issues next month. I am sorry for taking more time than I should, but we are within the one-and-a-half hours. I hope that noble Lords will forgive me, particularly since I was interrupted.
1600 Your Lordships will be aware that the Inland Revenue is undertaking a major project to rewrite existing direct tax law in a clearer, more user-friendly way. That is being carried out with the guidance of a committee chaired by the noble and learned Lord, Lord Howe of Aberavon. Some who are eminent in the tax field argue for greater use of purposive drafting in tax legislation. Others, however, are concerned that that would undermine the certainty provided by tax legislation.
The Inland Revenue's tax law rewrite team is exploring, without commitment, the issues raised by purposive drafting in the context of its project. The team aims to publish a working paper next month which will illustrate various approaches to purposive drafting and advance understanding of the role it might play in the rewrite. Although this work will deal only with direct tax legislation, it will be of great interest in relation to the issues we have been discussing this evening.
I said earlier that I would return to the question of explanatory material. Here, as some noble Lords said—the noble and learned Lord, Lord Brightman, in particular—there has been an important development since our short Starred Question debate on 11th November. Both our procedure committee and the modernisation committee in another place have endorsed a proposal by the First Parliamentary Counsel for a major improvement in the material provided alongside Bills.
The new material will be set out in explanatory notes. Those will subsume the material at present contained in the Explanatory Memorandum and Notes on Clauses but extend and improve it. The notes will be made available alongside the Bills when they are first published, not at Second Reading, updated when Bills move from one House to the other and updated finally at Royal Assent. I do not think I can promise the noble Lord, Lord Lester, that they will be available free in hard copy. That would be a great precedent in government publishing, particularly since we charge for the Bills themselves. However, as he reminded the House, they are certainly available on the Internet.
Like the present explanatory memoranda, the notes will not constitute legislative text and will not be amended or passed by Parliament. They will be prepared by the department responsible for the Bill. The First Parliamentary Counsel has provided two examples showing how the new notes, by explaining the key points of legislation in non-technical language and setting out relevant background material, can assist the reader to understand legislation. The examples are reproduced in the Second Report of the Select Committee on the Modernisation of the House of Commons.
On the issue raised by the noble Lord, Lord Lester, as to whether they can be taken into account in the courts, alongside anything I say following the case of Pepper v. Hart, the only answer I can give is that it is for the courts to decide what attention they should pay to them.
1601 The Question asked whether the Government would instruct departments and draftsmen,to include purpose clauses or statements of principle whenever necessary or advantageous for making clear the intention of Parliament".I suggest that the phrase "whenever necessary or advantageous" begs the question. If we knew when they would be necessary or advantageous and could say so in advance, we could issue instructions of that kind. I have to say to the House that we will not issue the instruction for which the noble Lord, Lord Renton, asks. But, conversely, we will certainly not instruct them not to because we believe with him and all noble Lords that there are circumstances where they are appropriate. They are used from time to time where they are required and are intended to have legal effect. The improvements in the explanatory material to accompany Bills and Acts should meet the concerns 1602 we share to assist the users of legislation without including in legislation material which is not intended to have legal effect.
§ Lord Lester of Herne Hill
My Lords, before the Minister sits down, perhaps I may say that his comments are gratifying. A great cheer should go up for what he said about the new explanatory material.
My Lords, I have no right of reply and I have no right to ask a supplementary question. However, I wish to express my appreciation to all noble Lords who have taken part in the debate. I mention especially my noble and learned friend Lord Mackay of Drumadoon, who was debating in the House on Monday, went to Scotland and returned to take part in the debate. I am most grateful.
House adjourned at nine o'clock.