§ (".Sections 12 and 13 of, and paragraph 16 of Schedule 2 to, the Sexual Offences Act 1956, sections 1 and 8 of the Sexual Offences Act 1967, section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995 and Article 3 of the Homosexual Offences (Northern Ireland) Order 1982, as read by the application of the existing law and as amended by sections 1 and 2, and with the omission of repealed provisions, are set out in Schedule (Sexual Offences Acts 1956 and 1967, Criminal Law (Consolidation) (Scotland) Act 1995 and Homosexual Offences (Northern Ireland) Order 1982, as amended) to this Act.").
§ The noble and learned Lord said: In moving Amendment No. 45 I shall speak also to Amendment No. 46. The Committee may be relieved to know that I do not intend to say a single word about sex and I shall he as brief as possible.
§ I seek to introduce into this Bill a Keeling schedule covering Clauses 1 and 2 of the Bill. I shall say a few words about a Keeling schedule for the benefit of those Members of the Committee not familiar with the device. If a Bill intends to amend a section, including a subsection, of an existing Act of Parliament there are two ways to do so. The amendment can take the form of a patchwork amendment, adding a word here, substituting or deleting a word there, as in Clauses 1 and 2 of this Bill.
§ Alternatively, the amendment can take the form of deleting the whole section and substituting a new clause. The principal advantage of the patchwork type of amendment is that it spotlights the precise changes intended and also will often avoid amendments to amendments, which are a bugbear.
§ The advantage of the wholesale type of amendment is that the amended section can be read as a whole when the Bill is passed and becomes an Act of Parliament. That advantage becomes overwhelming if the section being amended has already been amended by previous Acts of Parliament so that one has to keep four or five fingers in past volumes of statutes in order to read the amended section in its new form.
§ I accept that a patchwork amendment is more convenient to the House than a wholesale amendment. On the other hand, a wholesale amendment of an already heavily amended section is almost always 118 more convenient to judges, lawyers and other members of the public who are our customers. The customers can read the amended section in its current form without having to trudge through past legislation.
§ We make Acts of Parliament for the public and not for ourselves. Fortunately, there is a halfway house. It is possible to have the best of both worlds—by amending a section in patchwork style and adding at the end of the Bill words to the effect, "Section 1 of the so-and-so Act, as previously amended and as further amended by this Act, is set out in the schedule to I his Act".
§ To illustrate the need for a Keeling schedule, perhaps I may tell the Committee the contortions through which a reader must go in order to read Section 1 of the Sexual Offences Act 1967 if it is amended as proposed by this Bill. Section 1 of the 1967 Act has seven subsections. First, the reader must go to Schedule 11 of the Public Order Act 1994 to amend line 2 of subsection (1). Secondly, the reader must go to Section 145 of the same Act and also to Clause 2(3) of the Bill for the remainder of subsection (1).
§ Thirdly, for subsection (3), the reader must go to paragraph 34(a) of Schedule 1 to the Mental Health (Amendment) Act 1982 to amend lines 1, 2 and 8 of subsection (3). Fourthly, the reader must go to paragraph 34(b) of the same schedule to insert a new subsection numbered (3A). Fifthly, his researches will reveal that subsection (4) is unchanged. Sixthly, the reader must go to Section 146 of the Criminal Justice and Public Order Act 1994 to discover that subsection (5) has been repealed.
§ Seventhly, to ascertain subsection (6) the reader must go back to Section 145 of the Criminal Justice and Public Order Act 1994 and then return to Clause 1(2) of the Bill and the final words of subsection (6). Eighthly, the reader heaves a sigh of relief on discovering that the final subsection of Section 1 of the Sexual Offences Act 1967 is unchanged.
§ To foist an Act of Parliament on the public in this form is simply not fair. It is not democratic. Of course, the answer may be given that the reader can spend £1,000 or so on Halsbury's Laws of England or a computer and that will, to a large extent, overcome his difficulties. But it is not an answer which appeals to me. The proper answer is to add to the Bill a Keeling schedule.
A Keeling schedule, though not often now used, has a respectable ancestry. It first arose on 26th July 1938. Mr Keeling, the Member for Twickenham, asked the Prime Minister,
whether he has considered a memorandum on the evils of legislation by reference submitted to him by a number of Members; and whether he has any statement to make".—[Official Report, 26/7/38; col. 2919.]
The Prime Minister, Mr Neville Chamberlain, said at col. 2920,
I have considered the memorandum with interest … The suggestion made is, in effect, that a Bill amending or applying an existing enactment by reference should contain a Schedule setting out the enactment as it will read when amended by the Bill … This method is not, I understand, put forward as a panacea to be used
in all cases … There are, however, undoubtedly some cases where the method suggested by the memorandum would be both practicable and advantageous; and I have instructed the Parliamentary Counsel to proceed experimentally on the lines suggested in suitable cases".
§ Members of the Committee may be puzzled why the Prime Minister was considering the policy of drafting Acts of Parliament at a time when he was shuttling between London, Godesberg and Munich when his mind was mainly occupied with the rising power of Hitler's Germany. The answer is that under our quaint system of legislation the office of parliamentary counsel, who do the basic work, is responsible for policy to the Prime Minister and to no one else. Only the Prime Minister can give policy directions to the office of parliamentary counsel. The Committee may feel that it would be more appropriate if the office of parliamentary counsel were responsible to the Lord Chancellor, to the Attorney-General or perhaps to a joint committee of both Houses.
§ How can matters of general drafting policy have been expected to engage the attention of Sir Winston Churchill in 1940 to 1945 or the attention of Mr Blair today? The effect of the Prime Minister's 1938 policy direction to the office of parliamentary counsel was substantial. Between 1939 and 1949, 23 public Bills had Keeling schedules. In more modern times, between 1966 and 1993, 24 public Bills had Keeling schedules. Since then, they have died out save for a single exception; the Criminal Evidence (Amendment) Act 1997.
§ I ask myself whether parliamentary draftsmen are disenchanted with Keeling schedules and will no longer have anything to do with them. It would be quite inappropriate for me to seek to bring my amendment to a conclusion today. As a result of the amendments made to Clauses 1 and 2 it is already out of date. However, I would respectfully ask the noble and learned Lord the Attorney-General to consider inserting a Keeling schedule into the Bill. He might even find time to grant me the favour of an interview.
§ Before I sit down, perhaps I may say that I owe a deep sense of gratitude to Mr Edward 011ard, then of the Public Bill Office, for drafting the Keeling schedule, which I could never have done accurately myself. I ought to thank his successor for his research at short notice into past uses of Keeling schedules. I beg to move.
§ Earl Russell
We should be grateful to the noble and learned Lord, Lord Brightman, for an extremely helpful series of suggestions and an extremely interesting series of remarks. I have always been attracted to Keeling schedules, ever since I was introduced to them by the noble Lord, Lord Renton, whose remarks on drafting as always deserve a great deal of attention.
I have experienced two Keeling memoranda, if that is not an improper phrase—kind of sub-Keeling documents—drawn up by the Minister for the assistance of the House on the Child Support Acts 120 1995 and 1999. Both of those were extraordinarily helpful. I wish only that they could have been used in the full Keeling sense in the Bill.
When one approaches legislation, especially in social security, one feels that one is being asked to undertake a crossword puzzle. To those such as myself who lack skills in crosswords, that can be extremely difficult. So I hope that the noble and learned Lord's remarks will receive very careful attention. In this particular case it is possible that the Minister might reply that if it were done now, it would only have to be done again in the very near future in the review of sexual offences. Were he to make that reply, I would, of course, listen to it with great seriousness. But the principle of what the noble and learned Lord has said remains sound and remains in need of urgent attention from parliamentary counsel and all those to whom they may on occasion answer.
§ Lord Stoddart of Swindon
I support the amendments tabled by the noble and learned Lord, Lord Brightman. When I was elected to the House of Commons, after being a member of a local authority, I can remember how bemused I was by parliamentary procedure and parliamentary Bills and amendments. It seems to me that the noble and learned Lord, Lord Brightman, is absolutely right that legislation is for the people. If legislation is for the people, then the people ought to be able to read the legislation in one go, not in several goes, as he outlined. Therefore, I hope that my noble and learned friend will give very serious consideration to what has been said. I shall be interested to hear his reply.
§ Baroness Blatch
I rise briefly to support the noble and learned Lord, Lord Brightman. Having spent a good deal of the past three years doing my own research, I would welcome this provision in many other Acts of Parliament. I find the cross-referencing of one piece of legislation with another an absolute minefield. As well as people outside, some of us here would benefit greatly from the suggestion of the noble and learned Lord, Lord Brightman, and I hope that the advice is followed.
§ Lord Williams of Mostyn
I always believe everything that your Lordships tell me! I am thinking of having a T-shirt printed: "I have always been attracted to Keeling schedules—Earl Russell". I think some eyebrows shot up a little around the House when he said that.
As always, of course, what the noble and learned Lord has said commands enormous attention in your Lordships' House. It may be—I hope he will not think that I am being presumptuous—that his suggestion would fall more usefully to be considered when the outcome of the comprehensive review of the sexual legislation ought to bring about a major rewriting of the whole law on sexual offences.
He asked, with his usual charm and courtesy, whether or not we might have a meeting. I would certainly welcome that. Perhaps his suggestion, which seems to all of us to be of great value, may well be 121 deployed on a subsequent occasion because, of course, this Bill deals with only a limited number of sexual offences. However, I am most obliged not only for his suggestions but for the most helpful tone in which he deployed his submissions.
§ Lord Brightman
I entirely agree with what the noble and learned Lord, the Attorney-General, said. It occurred to me that this could be dealt with by means of a consolidation Bill. However, that means that there would have to be a First Reading and a Second Reading here, followed by a joint consolidation committee of the two Houses, which would take quite 122 a long time. Your Lordships may feel that, if it can be done, it would be quicker to have a Keeling schedule in this Bill rather than wait for a consolidation. I am very grateful to those of your Lordships who have spoken but, in the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 7 agreed to.
§ [Amendment No. 46 not moved.]
§ House resumed: Bill reported with amendments.
§ House adjourned at ten minutes before eleven o'clock.