§ 7.38 p.m.
§ Lord Renton rose to ask Her Majesty's Government what steps they will take to make the wording of Acts of Parliament easier to understand and more certain in their legal effect.
The noble Lord said: My Lords, I rise to ask this Question with even greater pleasure after what the noble Lord the Chief Whip has said.
It is often said that this proposal is a contradiction and that making statutes easier for lay people to understand may destroy their legal effect. But in spite of that risk, I suggest that it is in the public interest that the Government and Parliament should try to improve legislation to make it easier to understand and less ambiguous and to make it more certain in its legal effect.
1209 As long ago as 1547, the teenage King Edward VI pleaded for that to be done, and efforts have often been made since then. However, in the past 30 years the tendency has been to avoid enacting statements of purpose and of principle but to attempt to cover in detail the many hypothetical circumstances which might arise and do not always arise. That system often fails to anticipate some of the circumstances which do arise. The result has added to the problems of interpretation and led to a huge increase in the work of the courts, especially of the Court of Appeal and of the Law Lords in your Lordships' House. I therefore urge the Government to increase greatly the use of statements of purpose and of principle.
Although detailed provisions are sometimes necessary to define people's rights and duties, especially in fiscal legislation but also in some other legislation as well, they should, even when necessary, be preceded by statements of purpose. No harm would be done, and often clarification would be added. Indeed, such statements will always enable detailed provision to be better understood, not only by enabling the drafting of obscurities to be overcome but also by filling in gaps which are left by attempting to legislate simply to cover in detail hypothetical circumstances.
Since 1870 there has been only one official committee to advise government and Parliament on the drafting of Acts of Parliament. That committee sat from 1973 until 1975 and was the Committee on Preparation of Legislation. I was its chairman and the noble Lord, Lord Richard, who is not in the Chamber at present, was a valuable member. We had an experienced and strong committee, including several leading parliamentary draftsmen who had reached the top in Whitehall or in Edinburgh.
The senior judges who gave evidence before us, including the late Lord Denning and, I believe, the noble Lord, Lord Wigoder, the then Lord Chief Justice, all recommended that the intentions of Parliament should be made clear by statements of principle.
It is a great advantage that the noble and learned Lord, Lord Brightman, will speak in this fairly short debate. He has made a full and brilliant survey of drafting in recent years. It is very long and very detailed, and at its last conference last summer the Statute Law Society benefited from the address which the noble and learned Lord gave. Now that he can speak for longer than six minutes, I hope that he will not feel restrained in the length of speech that he makes, more especially as I shall not speak for the whole of my 10 minutes. And the noble and learned Lord, Lord Williams of Mostyn, who I am very glad is to reply to this debate, may even find that he has a little more than 12 minutes left. I hope so.
Perhaps I may say to the noble and learned Lord, Lord Williams of Mostyn, that I implore him not to be defensive in the reply that he gives to the debate but to be progressive in this matter, for it is one which affects all the people of the United Kingdom.1210
§ 7.45 p.m.
§ Lord Hooson
My Lords, I have known the noble Lord, Lord Renton, for many, many years. In the other place and in your Lordships' House he has been a ceaseless campaigner on the very important subject of making our laws more apparent, readable and relevant to all those who are affected by them; that is, our citizens.
I am also delighted to know that the noble and learned Lord, Lord Brightman, is taking part in the debate. He has an unrivalled knowledge of the steps taken over the past 125 years to improve the drafting and presentation of legislation. His lecture to the Statute Law Society on 19th June this year on "Drafting Quagmires" is a rich source of information and suggestions. I have read it several times and I refreshed my recollection of it a couple of days ago.
I took part in the consideration of the wording of one of the Acts which the noble and learned Lord quoted in that lecture, to which I shall refer. Clause 1 of the National Health Service (Private Finance) Bill was debated in your Lordships' House on 17th June 1997. I shall cite that clause as it was first worded: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".Can anyone explain that? One tries to imagine how a doctor, an administrator or even a lawyer, if consulted on that clause, would have interpreted it. Mercifully when people asked what it meant, it transpired that the Explanatory Notes to the Bill spelt it out in plain English. The explanation read: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".After a great deal of pressure was brought to bear on the Government, who at first rejected the suggestion, the wording of the explanatory note was moved as an amendment to take the place of the original drafting. and it was accepted. That is illustrative of one aspect of the need to have our legislation much more clearly defined. The wording of Explanatory Notes can be used in place of archaic and contorted wording that is often unnecessarily obscure. So much of our modern legislation is affected in that way.
I pose a question to noble Lords here: when one looks at a Bill presented in this House, how often does one look at the Explanatory Notes first rather than the clause? The Explanatory Notes are normally written in clear English. I believe that for years campaigning has continued for the use of plain, direct, modern English and for the avoidance of archaic and outdated methods of reference. I am sure that the noble and learned Lord who is to follow me will expand on that subject.
The noble Lord, Lord Peyton, who I am sorry is not in his place, in his own inimitable way when a member of the other House spoke on this subject on 3rd November 1975. He said that to describe our modern statute law as often unhelpful to the reader was one of the most charming pieces of 1211 understatement that he had ever come across. Those words are equally true today. It is time that the Government took an initiative and did something effective and drastic.
I had tabled an Unstarred Question in case that tabled by the noble Lord, Lord Renton, was not selected for debate. In that Question I suggested that there might be a joint committee of both Houses—it would be helpful if that was chaired by a Law Lord or a former Law Lord—to consider the question of whether there should now be guidelines for those who draft our legislation and those who present it. The noble and learned Lord, Lord Williams of Mostyn, has many achievements behind him and no doubt many ahead of him. However, it would be one of his greatest achievements to ensure that in the future, not only are there debates of this kind in the other place and in your Lordships' House but that action is taken on them to ensure that we have statutes and legislation that can be easily interpreted by the ordinary citizens of this country.
§ 7.51 p.m.
§ Earl Attlee
My Lords, I am grateful to my noble friend Lord Renton for asking his Unstarred Question. He raises an important point, as most legislation is undoubtedly difficult to understand. Sometimes one cannot help thinking that parliamentary draftsmen are a law unto themselves. I know not how they would react to the suggestion made by the noble Lord, Lord Hooson, of guidelines.
My background is one of industry and not of public affairs, Parliament or law. Some time in the past I had occasion to look up road transport law. I went to the appropriate Act and then to what I now know to be secondary legislation. It was all pretty incomprehensible. My understanding now, nearly 10 years later, is a little better. I now understand what the terms, "The Secretary of State" and "person" mean in legislation.
No doubt the noble and learned Lord the Leader of the House will point out that there are some very good reference books. But sometimes even they are wrong, especially on matters of detail. I shall be surprised if the noble and learned Lord, Lord Brightman, does not tonight extol the virtues of the Keeling schedules. I shall not steal his thunder, other than to strongly support his view.
On a related issue I find it hard to understand why it is not possible to consolidate much-amended Acts on a regular basis. If that is thought to be too difficult, surely it means that the current drafting of the original Act, as amended, is not certain. I may be missing something, but I cannot understand why it is not possible to consolidate any Act or statutory instrument with a pair of scissors and glue. Perhaps the noble and learned Lord will explain what I am missing; I suspect that I am missing something. If that is too difficult for me to undertake, surely it is an argument in support of the Keeling schedule.
My noble friend's Unstarred Question relates to Acts of Parliament, but similar issues arise with regard to statutory instruments. Some SIs, for instance, the 1212 Motor Vehicles (Construction and Use) Regulations, have been amended many times, but for good reasons. If a copy of the regulations is ordered from the Stationery Office, the original version will be supplied. It is possible to order amended SIs if their reference is known, but amending the original would be a massive undertaking. Can the noble and learned Lord tell the House why such important and regularly amended SIs cannot be completely remade at least annually in their fully amended state? Furthermore, it would be helpful if the noble and learned Lord could explain how from time to time Northern Ireland construction and use regulations are able to be issued fully amended when they read directly from the regulations for England and Wales?
I hope that I shall not be testing your Lordships' patience by raising yet another issue, more applicable to statutory instruments than to primary legislation. Multi-million pound orders are placed on the basis of engineering drawings, which are made according to international standards. Engineering drawings have to be unambiguous. Any mistakes in that regard can be extremely expensive unless detected early on in the tender process. My understanding is that drawings and illustrations are only used in SIs when unavoidable. When I read technical SIs, they are difficult to understand, even though I am a hands-on technical person. However, a drawing or illustration can he quite clear about what is meant. After all, a picture paints a thousand words. Does the noble and learned Lord agree that drawings and illustrations should be encouraged in SIs, and if not, why not?
§ 7.56 p.m.
§ Lord Phillips of Sudbury
My Lords, like all other noble Lords, I thank the noble Lord, Lord Renton. As a relative newcomer it is an example to us all to see a man of his not-so-tender years provide the subject for debate as he has tonight and to be able to look back over a vast life in public service so that. he can even tell us that he was chairman of the last committee properly to review the subject. It is rather strange that one of the few committee reports I received in the early 1970s was from his committee, and it was very important.
Lawyers have always been unpopular, and are unpopular for the reason behind the Unstarred Question.Let's kill all the lawyerswas a cry put into the mouths of the peasants in Shakespeare's Richard—
§ Lord Phillips of Sudbury
My Lords, my noble friend Lord Goodhart corrects me; it was Henry VI. In the Putney debates 1947 the point was made strikingly and forcefully that the laws then were completely beyond comprehension, needed to be written in plain English and were generally unsympathetic to the yeomen and public of England. More in his Utopia envisaged a world without lawyers. I was told today by a Russian 1213 that the first decree that Lenin signed into force in 1917 was one abolishing lawyers. He had to bring them back in 1922, but at least he tried.
The problem of a lack of public understanding of what we do, and certainly a lack of understanding of not only the content of the laws we pass but their number and range, is a pressing problem. It is so difficult to contend with that I sometimes think that we avert our eyes from it. No government ever contemplate the notion of legislating less law. The pressure is always for more law. We then have our own tradition of law-making which, compared with other parts of the world, is specific, concrete and stated. I suppose one could look to some of the continental jurisdictions, which are much more content to deal in generalisations. Each style has its own virtues and defects, although I think that one is driven into the arms of the lawyer either way. Our present law-making has become so complicated—there is so much existing law to have to work it in withthat the complexity of our present law defeats the layman in all but very few cases. There are very few Sale of Goods Acts or Partnership Acts around these days, so that the layman is driven into the lawyer just as certainly he is with the continental style in which, although the generalisation may be understandable, the application really is not.
In making that point I shall comment on the Human Rights Act in two ways. First, it was perhaps of a more continental style but that is not surprising, given its origins. Secondly, I commend the parliamentary draftsmen. The Act was a consummate piece of skilled work on their part. Nothing I say tonight is aimed at the hard-pressed group of parliamentary draftspeople who, by and large, do a sterling task.
However, I want to suggest that we need to stop the rot in our legislation. The amount of new law is fast growing. One only needs to go to the Library of the House to see, simply in terms of shelf space, the feet occupied by primary, secondary and of course European—directives and regulations—legislation. It increases year by year inexorably. The interlocking of existing with new legislation often gives rise to the most arcane difficulties. It is multi-dimensional. In many spheres trying to understand what the law provides is almost like playing 3-D chess. Finally, most of it is additional. One rarely finds that the amount of law jettisoned by a new piece of legislation is anywhere near the length of the new.
The effect of that is to lead to greater specialisation within the legal profession. That adds another vicious impulse to the whole process. One now gets—it is not a conspiracy—highly specialised groups of lawyers whose commercial advantage is in the specialisation and complexity of which they are masters. They are the drivers of further legislative change. They are the only people who understand the existing law, so when any new legislation is contemplated, they are the only people who contribute to the preparation of it, let alone the passage of the legislation concerned.
1214 Therefore, the whole process is becoming incestuous, introverted and largely self-serving. That is highly dangerous. One gets spin-off effects. For example, large companies are the only happy dealers with the new complex world of law because they are the only people who can afford the legal department which can master the regulation that surrounds them. That becomes a problem and a disadvantage for the small and medium-sized companies.
Everything is added to and accelerated by the breakdown in our community and national society life, which in turn creates a greater need for regulation. Regulation has not only the problem that it is complicated, but that if it is not complied with or evenly enforced it becomes counterproductive. The vast majority of the public feel that it is an imposition. In turn that begets further regulation to shore up the ineffective edifice of existing regulation. One then gets into an Italianate situation which fast leads to a break down of public confidence in the law and low level, and not so low level, corruption.
What can we do with Parliament? We could do much more to help legislators in both Houses. For example, today we were given a conformed version of the new legislation on the Anti-terrorism, Crime and Security Bill, which simply melded the amendments into the existing law so that it can be read sequentially. A great deal more of that could be done.
There was the Bill dealing with the Nice Treaty that we were trying to deal with recently. What an appalling task it was to try to fit the bits together. That could have been done for us, including showing the omissions as well as the additions. It is no good unless you show both. That is regularly done between solicitors when they are drafting and redrafting documents.
The Explanatory Notes—a great new development, for which we give thanks I am sure—could be improved in two respects: first, there could he additional explanation of difficult parts of new legislation. Again, the anti-terrorism Bill provides many examples of that. It has extremely difficult passages. I refer to Clauses 17, 103 and 104, with which I am particularly involved. I am sure that a great deal more of the work that is done for Ministers could be made available to us. That would help to draw more Peers into the debate. Even in my three and-a-half years, I have noticed a decline in the activists behind debates. Again and again one talks to colleagues who say, "Well, I just can't get my head around it". Everything should be done to make Bills as accessible to as many as possible.
Examples are hugely important. We had the debate last Thursday in relation to Clause 17 where the noble Lord, Lord Rooker, gave three examples of the workings of some of the amendments. It would have been hugely helpful had examples of all the main clauses been given right at the beginning, so that everyone could get their heads around things.
Further, there is help to the public. Explanatory Notes of legislation that affects the public should be available to them. There should be brochures in 1215 popular form and in plain English. Where legislation deals with changes in sovereignty arrangements, I believe that, as I tried to persuade the House in relation to the Bill dealing with the Nice Treaty, we should send a tabloid to every household in the country which explains and illustrates in a vivid way what will happen to their sovereignty. We need to reach out to the citizens.
In conclusion, we need to cut back on law making. It is an essential prerequisite of everything else that we talk about tonight. We need to review the continental approach and perhaps set up a committee to deal with it. We need to keep lay justices firmly in their saddles because they are the only breakwater to the welling complication of criminal law. We need to take citizenship seriously. That subject is coming on to the school curriculum at the end of next year. That will open up a huge opportunity. We need post-legislative audits and impact assessments to chuck out legislation which does not do what its proponents said it would.
Finally, I suggest a displacement rule: first, that anyone corning to the House with new legislation should say what the cost is not just to the Exchequer but to the public; and, secondly, if at all possible, we should have suggestions as to displacement of existing laws that help reduce the flow in complexity.
§ 8.6 p.m.
§ Lord Brightman
My Lords, I also thank the noble Lord, Lord Renton, for raising the question of what steps could be taken to make legislation easier to understand and more certain in effect.
If I have time, I should like to add to the proposals already made six steps that might be considered. The order in which I mention them is not intended to signify any particular order of priority.
I mention, first, the avoidance so far as possible and so far as appropriate of legislation by reference, as it is usually called. I mean, of course, the patchwork amendment of a section or subsection by adding words here and removing words there, instead of repealing the whole section or subsection and enacting it in its finally amended form.
A neat example of unacceptable patchwork amending came before this House recently in the form of amendments to Section 1 of the Sexual Offences Act 1967. The section had already been amended by Acts passed in 1982 and 1994. The Sexual Offences (Amendment) Bill was designed to introduce further amendments. Instead of repealing Section 1 of the 1967 Act, which was divided into six subsections, and inserting a new section in its amended form, the reader was left with the following formidable task. Line 2 of subsection (1) was amended by Schedule 11 to the 1994 Act. The rest of subsection (1) was amended by Section 145 of the 1994 Act and Clause 2(3) of the Bill. Lines 1, 2 and 8 of subsection (3) were amended by paragraph 34(a) of Schedule 1 to the 1982 Act. A new subsection (3A) was inserted by paragraph 34(b) of Schedule 3 to the 1982 Act. Subsection (5) was repealed by Section 146 of the 1994 Act. Subsection (6) was inserted by Section 145 of the 1994 Act and amended by Clause 1(2) of the Bill.
1216 Can anyone doubt that it would have been far more helpful to have repealed the already amended Section 1 of the 1967 Act and substituted a new Section 1 incorporating the existing and the proposed new amendments? That story can be read in Hansard of 11th April 2000 at col. 154 and of 13th November 2000 at col. 117.
A second step that might be conside red is the greater use of Keeling schedules. As your Lordships know, that device allows the draftsman to insert in the text of an Act the patchwork amendments that the Government want and to insert in a schedule the relevant section in its finally amended form.
In a complicated case, a Keeling schedule cart be enormously helpful. There is even a precedent for using it to rewrite an entire part of an Act. That was done by Schedule 5 to the Housing Act 1996, when an entire part of the Landlord and Tenant Act 1987 was reprinted in its amended form in a five-page Keeling schedule.
A third step that might be considered is a greater use of consolidation Acts. The output of such Acts has suffered a severe reverse in recent years. In the four Sessions of Parliament between 1981 and 1985, no fewer than 37 consolidation Acts were passed. In the last four Sessions there have been only four such Acts. Is that due to a lack of staff, of funds, of initiative or of parliamentary time? I doubt whether it is the latter, because there is a fast-track procedure whereby consolidation Bills pass through both Houses on the nod, after being vetted by a Joint Committee of both Houses.
A fourth step that might be considered is the more frequent inclusion in Acts of an index of defined expressions. Your Lordships will have noticed such an index, admirably laid out, in the Commonhold and Leasehold Reform Bill which has just left this House. Section 68 of that Bill is divided into two columns: column 1 lists all the defined expressions used in Part 1; column 2 states the section in which the definition is to be found. That has two advantages. In the first place, the reader can instantly discover whether, for example, a word in common use—the word "document", let us say—is used in its dictionary sense or has a statutory meaning. Secondly, in the latter case, the reader can instantly find out where that meaning is to be found.
A fifth step might be to consider the introduction of drafting guidelines, which have existed in the Community since 1998. Apart from the more obvious directions, such as,Overly long articles and sentences, unnecessarily convoluted wording and excessive use of abbreviations should be avoided",there is also the guideline:Preference shall be given to replacing whole provisions … rather than inserting or deleting individual sentences, phrases or words".My sixth and last suggestion is that the status of the Office of Parliamentary Counsel should be reconsidered. As your Lordships will know, that office is responsible only to the Prime Minister. As I understand it, that means that only the Prime Minister 1217 can give directions to the Office of Parliamentary Counsel on drafting policy. If that is right, the Office of Parliamentary Counsel is in practice—I intend no offence by this—a law unto itself. These days, no Prime Minister could possibly direct his attention to the drafting of Bills.
I must be right, because any of your Lordships who have researched the origins of the Keeling schedule will have noticed that the instruction given to the Office of Parliamentary Counsel to try out that device was given on 26th July 1938 by no less a Minister than Mr. Neville Chamberlain, the Prime Minister.
In the few minutes that I have left, perhaps I could go back to add a little flesh to one or two points. I spoke about the inclusion in an Act of an index of defined expressions. In some quarters there seems to be a strange reluctance to help the reader of an Act of Parliament in that way. In the 1997–98 Session, the Government of Wales Act 1998, the Scotland Act 1998, the School Standards and Framework Act 1998 and the Data Protection Act 1998 were all passed. Each was a long Act. Each Act made use of from 42 to 67 defined expressions. Each Act had a most useful index of defined expressions.
The Competition Act 1998 of the same Session contained 59 defined expressions but no index. I tabled an amendment to add such an index. The Government rejected the amendment. The only reason given for the rejection was that,it would not be appropriate".—[Official Report, 5/3/98; col. 1370.]I probed the matter further by means of a Question for Written Answer. It came back that an index would be,unhelpful for users".—[Official Report, 20/7/98; col. W A82.]How on earth could the inclusion of such an index be helpful in the case of four Acts of Parliament of comparable length, with a comparable number of defined expressions, but unhelpful in the case of the Competition Act 1998? The inclusion of such an index would, I calculated, have cost just one page of print.
The problem of legislation by reference—if I may turn to that for a moment—has a long history. Cabinet papers held at the Public Record Office under the reference PREM 1/284 show that the problem dates back to at least 1875, when a Select Committee of the other place was set up to suggest improvements in the method of legislation. The committee reported that,The practice"—of legislation by reference—seems to be increasing, and when carried out to excess makes the statute so ambiguous, so obscure and so difficult of comprehension that the judges themselves can hardly assign a meaning to it".That was in 1875. In a tax case in 1928, Mr Justice Rowlatt echoed that complaint. He said that five pages of piecemeal amendments to an existing section of a Finance Act rendered that section,perfectly unintelligible to any layman or any lawyer who has not made a prolonged study with all his law books at his elbow".1218 The all-time high of the problem arose in this Session from the Social Security Fraud Act 2001. Having regard to the time, perhaps I could just give the reference. If anyone is interested in reading the story, it is in Hansard of 8th March 2001 at column 338.
I am afraid that I have spilled over my time, but, finally, the Question raised by the noble Lord, Lord Renton, put me in mind of an observation made by the noble Lord, Lord Cope of Berkeley, when moving an amendment to the Vehicles (Crime) Bill. He said:A few years ago. Sir Ernest Gowers wrote a book entitled Plain Words. It was required reading for all people on joining the Civil Service".—[Official Report, 6/3/01; col. 136.]I inquired of the Library whether I could borrow that book. The Library could not trace it. I do not know whether the noble and learned Lord the Lord Privy Seal may be able to institute a search for that book.
§ 8.20 p.m.
§ Lord Howe of Aberavon
My Lords, I begin by apologising for my incompetence in not being on the List of Speakers for this debate. However, I invite the Leader of the House, with his reputation for radical progressivism, to endorse a change in procedure. I have asked my noble friend Lord Attlee if I might borrow the seven minutes that he did not use, and he was entirely happy with that. Perhaps that will commend itself to the Leader of the House; we shall see.
One aspect of the tragedy of this debate is the quality of the speeches made by my noble friend Lord Renton and by the noble and learned Lord, Lord Brightman. Both of them have been campaigning on this cause for as long as the memory of man runneth, with immense assiduity and immense concentration. If I may, with due modesty, I claim a small role in the paternity of the Renton committee. In 1970–72, I was Solicitor-General and had the task of overseeing the drafting of the Industrial Relations Act 1971, the European Communities Act 1972, the Consumer Protection Act 1971, the Fair Trading Act 1973, the Insurance Companies (Amendment) Act 1973 and companies legislation. Consequently, I was able rightly to persuade the then Prime Minister, as no one else could do it, to establish the Renton committee.
The tragedy is that both the noble and learned Lord, Lord Brightman, and my noble friend Lord Renton are monuments—I mean this with the greatest respect—to our collective failure to achieve almost anything. This is the third debate of its kind, specifically on this subject, in which I have participated since I became a Member of this House. The debates follow the same pattern, with plenty of examples to be presented, plenty of jokes to be made and plenty of grievances to be aired. However, does anything actually happen? That is the problem. It is not a problem of diagnosis; it is a problem of prescription and procedure. That is why I want the Leader of the House to respond to my second challenge, and be as radical and progressive in that respect as he is renowned for being in the Welsh valleys, where his reputation for radicalism, like that 1219 of the noble Lord, Lord Hooson, is second to none. That is quite radical enough. There is a challenge for the Leader of the House.
It is possible to design machinery to improve the situation. Without any sense of vanity, I point to the proceedings taking place in the tax law re-write project—in which we are not merely consolidating, but taking apart, putting together, re-indexing and, without changing the law, rewriting in plain English our primary tax legislation. It is a task that can be achieved by setting up a procedure to do it, and also by taking other action. The task is enormously difficult, but one must first clarify what the project is about, spot omissions and re-order it.
Forty people in the Revenue and Parliamentary Counsel Office are working on the tax law re-write project, addressing themselves to 9,000 pages of primary tax legislation. Our total output thus far, after four years, is 333 pages and the Capital Allowances Act 2001, which was passed last March. The task is hugely difficult and hugely time-consuming. However, in the 2001 Act we are making use of tables and sign-posts, giving examples and illustrations, and doing all the things that noble Lords said should happen. We can do that only by "virginalising" the land on which we are working, sweeping away the extraordinary jungle of antique statutes and replacing them with immense care by a new structure. That is the scale of that task to which we have to give still more resources and time. One always comes back to the balance between a hugely excessive volume of legislation and a hugely inadequate application of resources in money and mankind.
We are rewriting 9,000 pages of tax law but have produced 333 pages. Meanwhile, down at the other end of this building, the Chancellor of the Exchequer, urged on by people on all sides, is annually introducing 600 pages of new legislation. As I have said, it is as though we have been contracted to repaint Brighton pier while the Chancellor and his gang are busy trying to extend it to reach the French coast. That is the scale of the tragedy.
Less legislation entails a hugely determined effort by Prime Ministers and colleagues to identify what need not happen. We need not have had the overseas development legislation, and we probably do not need the export control legislation. We certainly do not need legislation on that scale. That is one issue that has to be tackled. The other issue is the need to have far more resources than have ever been devoted to tackling the first issue. The current constraint on the tax law re-write project is imposed not by the Revenue but by a shortage of draftsmen, despite the yeoman efforts that the Parliamentary Counsel Office has made to try to make people of real talent available to us.
That is where the Leader of the House comes into the act. He is now the channel, the funnel and the lightning conductor for all these untreated grievances to be addressed. I know that he knows that it will not be sufficient for him to go along to the Prime Minister and say, "It's time that we did something about this, 1220 Tony." Although we are talking about very small sums, he will have to mobilise a mammoth effort to build up over years a much larger crew in the Parliamentary Counsel Office. It will cost only a few millions more. When I was making my first Budget, the margin of error in the public sector borrowing requirement was a quarter of a billion pounds. So, within that type of framework, the Leader of the House would be able to find enough to make a dozen PCOs.
Ministerial responsibility has to be focused somewhere more effective than at No. 10 Downing Street, although I know not whether it is in the Lord Chancellor's Department or the Law Officers' Department. The point, however, is crucial. All the other efforts, as magnificent and effective as they are, are of no avail in the absence of, for the first time, a truly radical determination to build up a new structure to handle this material.
§ 8.26 p.m.
§ Lord Goodhart
My Lords, I am very pleased to speak in this debate. I am most grateful to the noble Lord, Lord Renton, for having introduced it. I am also very grateful to the noble and learned Lord, Lord Brightman, for his speech. Undoubtedly they are the two masters of statutory draftsmanship in your Lordships' House. Both have very long experience of it, and both have developed immense wisdom in handling the difficulties of statutory interpretation and statutory draftsmanship.
I am also very glad to follow the noble and learned Lord, Lord Howe of Aberavon. I have had the privilege, with the noble and learned Lord, Lord Brightman, of serving as a member of what is now the Joint Select Committee on tax simplification, of which he is the chairman, which oversaw the re-write project of the Capital Allowances Act 2001. That committee shows what can be done. It is a first step towards making tax legislation simpler and easier to understand. It has also made an effective and useful start. However, as the noble and learned Lord, Lord Howe, said, after four years the committee has managed to deal only with the Capital Allowances Act and has in front of it a great sea of other tax legislation. That demonstrates the difficulty of the matter.
There is no doubt that the situation has grown significantly worse in recent years. Not only tax legislation, but all legislation tends increasingly to be longer, more complex and harder to understand. However, there was a golden age of parliamentary draftsmanship, which I would say ran from about the 1880s to the 1920s. Some of those Acts—several of which are still on the statute book, such as the Partnership Act 1890 and the Sale of Goods Act 1896—were clear, simple, easily understood even by non-lawyers and remained for decades the basic framework on which the law was built. The nature of some of that legislation may be due in part to the fact that Lord Salisbury was the Prime Minister when it was passed in the 1880s and 1890s. As he did not believe in changing the law, the parliamentary draftsmen may have had plenty of time on their hands 1221 which they were able to spend fruitfully in producing some extremely skilful legislation. Going forward in time, we have the masterpiece of the Birkenhead property laws of 1925. Since then, I am afraid that it has been downhill. As has been pointed out, there are all the faults of modern legislation.
There is possibly an even worse problem in that the statutes are not only difficult to understand; they become increasingly difficult to find. So much is amended and one has to trace through not only the original Act but all the subsequent Acts which have amended it. Increasingly, amendments to primary legislation are not only in other primary legislation but now in statutory instruments; the Henry VIII clauses.
I was looking, for example, at the Anti-terrorism, Crime and Security Bill, which we discussed earlier today. That makes significant amendments to the Terrorism Act 2000; the Immigration and Asylum Act 1999; the Public Order Act 1986; the Crime and Disorder Act 1998; the Biological Weapons Act 1974; the Chemical Weapons Act 1996; the Police and Criminal Evidence Act 1984; the Aviation Security Act 1982; the Criminal Justice and Public Order Act 1994; the Ministry of Defence Police Act 1987; the Prevention of Corruption Act 1906; and the Intelligence Services Act 1994. I probably missed three or four along the way and a number of other Acts are amended in minor ways. We are therefore presented with an extreme difficulty in finding out what the legislation is.
The noble and learned Lord, Lord Brightman, pressed for the Keeling schedules. I know that the matter is very dear to his heart. However, it would have been difficult in the anti-terrorism Bill to publish Keeling schedules applying to all the different previous Acts. I am grateful to a distinguished judge from New South Wales, Mr Justice Handley, for drawing my attention to the practice in Australia. He is currently present in this country as the Inns of Court visiting fellow.
Under the Amendments Incorporation Act 1905, which was subsequently amended, it is provided that:When any Act has, before or after the commencement of this Act been amended by—Something of that kind seems a valuable step forward. I hope that the noble and learned Lord the Leader of the House will be prepared to ask the parliamentary draftsman to consider whether it is possible.
then in any reprint of the Act by the Government Printer the Act shall be printed as so amended".
- (a) the repeal or omission of certain words or figures, or
- (b) the substitution of certain words or figures in lieu of any repealed or omitted words or figures, or
- (c) the insertion or addition of certain words or figures,
It is extraordinarily difficult to discover what the law is on any given subject at any given time. At present, the Queen's Printer's copies of statutes are never printed in an updated form. It is true that commercial organisations provide updated versions, but surely the Government should do it, too.
1222 It goes somewhat beyond that, because increasingly we use the Internet for the purpose. Government statutes are printed on the Government's website but only in the original form of the statute. So if it is more than about six weeks' old, it is probably out of date. Surely, it should not be beyond the wit of whoever is responsible for government information technology to have a parliamentary website which can provide the text of legislation not only as it was originally enacted but as it is now—and, furthermore, on any date in between. Quite often, a lawyer needs to know not what the law was when it was originally enacted; not what the law is on 10th December 2001; but what it was on 10th December 1995. That is the date of the transaction which is the subject of litigation.
I believe that information technology provides a real opportunity for the Government to update the system of providing information which will enable members of the public, or lawyers, to find out quickly, easily and cheaply what statute law is at any given time. Indeed, I would extend that principle not only to statute law but, as the noble Earl, Lord Attlee, mentioned, to the main statutory instruments.
I am most grateful for the introduction of the debate. As has been said, the situation occurs regularly but nothing seems to be done. I hope that at last the Government will be able, particularly by taking advantage of modern technology, to ensure that legislation is easily available, even if it remains difficult to understand. I hope that we shall receive some helpful answers.
§ 8.36 p.m.
§ Lord Kingsland
My Lords, I should like to begin my brief contribution by congratulating my noble friend Lord Renton on persisting in his tireless quest to render the wording of Acts of Parliament both easier to understand and more certain in their legal effect. My noble friend's commitment to these changes is longstanding.
In 1975, while still in another place, as your Lordships are well aware, my noble friend chaired the Committee on the Preparation of Legislation. It was the first thorough investigation into the matter since 1875. Above all, the committee's 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 recommendation was, I might add, unanimous. After all, as the noble and learned Lord, Lord Brightman, said in the course of a previous debate in your Lordships' House on the subject:It is axiomatic that every Bill has a purpose".—[Official Report, 21/1/98; col. 1589.]It would be unfair to suggest that no improvements have taken place since my noble friend's report. There has been one of some significance. Explanatory Notes aimed at making legislation more accessible have been published, together with each Bill, from the start of the 1998–99 Session. They represent, undoubtedly, a substantial improvement.
1223 Nevertheless, it is fair to say that my noble friend's principal objective has not found favour with successive governments. That is probably why, in 1992, the Judicial Committee of your Lordships' House felt compelled to reach its decision in the great case of Pepper v Hart. There, as I am sure your Lordships are aware, noble and learned Lords relaxed the rule that hitherto prohibited the use of Hansard debates and other material as an aid to the judicial construction of statutes.
The judgment was intended to serve precisely the same objective as a statutory purpose clause. It is interesting to note that my noble friend's committee, deliberating between the years 1973 and 1975, was wholly opposed to the approach that the Judicial Committee felt ultimately compelled to adopt. Had my noble friend's committee met with success, it is likely that the judgment in Pepper v Hart would not have been necessary.
Meanwhile, the noble and learned Lord, Lord Brightman, has made a remarkable contribution to the debate so assiduously initiated and fostered by my noble friend Lord Renton. In his superb lecture, "Drafting Quagmires", delivered to the Statute Law Society on 19th June 2001, the noble and learned Lord illustrates the follies of legislation by reference, of semantic quagmires and of the absence of indices of defined expressions and suggests some enticingly painless remedies.
Your Lordships will be relieved to know that I have no intention of rehearsing the many perspicacious and apposite observations made by the noble and learned Lord in concocting his remedies. They are there for all noble Lords to read. Suffice it to say that I, together with my noble and learned friend Lord Fraser of Carmyllie, had the honour to represent the Opposition during the passage through your Lordships' House of the Competition Bill 1998. I recall the doughty battle fought by the noble and learned Lord, Lord Brightman, over the need for an index of defined expressions. How much easier indeed it would be to have such an index when manoeuvring over the especially inhospitable terrain that characterises that Act.
However, as the noble and learned Lord told us in his lecture and has told your Lordships today, the Government asserted in answer to his Written Question that such an initiative would be "unhelpful to users". I hope that the recent acceptance and adoption of a similar index in the Commonhold and Leasehold Reform Bill is a clear sign of a change of heart. Surely the time has come to abandon legislation by reference, to place Mr Keeling on his well deserved pedestal and to consolidate legislation as a regular habit.
§ 8.42 p.m.
§ Lord Williams of Mostyn
My Lords, not for the first time, I am grateful to the noble Lord, Lord Renton, for bringing this subject before your Lordships. This evening I have not heard anything with which I fundamentally disagree. Perhaps that is the radical approach that the noble and learned Lord, Lord Howe of Aberavon, urged upon me.
1224 Not long ago, when I was able to speak at the end of the gracious Speech, I suggested to your Lordships that interesting as the nature of our composition is, and continues to be, a more fundamental approach is how we carry out our work and whether we should change our working practices. None of the reforms put forward this evening is capable of being put into effect unless we have different working practices.
There is—I stress that this is my personal opinion—no justification at all for having a two-and-a-half month Recess as during that time this interesting, closely-argued work of scrutinising and improving legislation could easily be carried out. I float that as a personal view. If during a Committee stage 40 Members are interested and present, that is a surprise. I believe there are fewer than 40 of us present this evening. If we were able to timetable that efficient, useful work on legislation—the kind that has been described in the debate—during the Summer Recess, that would mean a commitment from each of your Lordships of perhaps one period of three or four days throughout the summer.
At present there is not sufficient parliamentary time to accomplish the ends that have been described this evening. I dissent from none of them: clarity, efficiency and economy in legislation. However, none of that can be brought about unless we are willing to work differently. I hope that we take this opportunity. My right honourable friend the Lord President in the Commons is eager to modernise procedures, not as some tabloid newspapers have foolishly said so that the Commons may work shorter hours, but so that it may work the same hours but to productive purposes.
We could lead the way. In this House there is a substantial body of expertise—and I must not say in parenthesis, expertise which may be lacking elsewhere, and I never thought to express it in any form of conceptual parenthesis. The present spread of legislation has increased and will continue to increase. On two forms of legislation—secondary legislation and European-derived legislation—I offer two innocent questions. Is secondary legislation adequately scrutinised? Is European-derived legislation adequately scrutinised? Both of those categories of legislation may affect the individual citizen in a more direct way than primary legislation. No one will carry out the remedial work if this House does not do it.
§ Lord Howe of Aberavon
My Lords, perhaps the noble and learned Lord will allow me to respond to that point in an interrogatory fashion. Is it not remarkable that in this House—without Standing Committees—we are able to carry out more effective scrutiny of primary and European legislation than the other place? The noble and learned Lord has refrained from making the comment, but the fact is that we undertake nearly all the scrutiny. That does not mean that we should not continue to do that, but it indicates that it is a much wider matter for both Houses. Underlying that is the need for better preparation of legislation before it reaches this House.
§ Lord Williams of Mostyn
My Lords, I entirely agree with the noble and learned Lord, Lord Howe of 1225 Aberavon. Limiting myself to this House, my proposition is that we do not carry out our work sufficiently well because we work in an absurdly archaic manner. When we come to some modest propositions that I hope to be able to put before the House about our working practices, I hope that every noble Lord who is present this evening will support what I say.
It is idle to say that we are a House of volunteers. It is fruitless to say that we have other work to do. If your Lordships want the negative batting-back of all propositions for improvement that have been put forward this evening, I shall say that I have other work to do in the morning and that I am only a part-time volunteer. That is the answer that is offered with the icy hand of history upon it. It is no good noble Lords correctly defining matters, as the noble and learned Lord, Lord Howe, has done.
We know the prescription, but we do not put it into effect. We will not be able to put anything into effect until we attend to our working practices. That means working sane hours, using the mornings and using two-and-a-half months in the summer and not tottering through the night, as we frequently have. I shall give way to both noble Lords as I intend to be entirely non-controversial. The answer is not to totter through at midnight and at two o'clock in the morning, failing to do our work because we are too tired and exhausted.
My Lords, I confess that I am puzzled by what the noble and learned Lord has said. Bear in mind that for years we have been making several thousand amendments a year to government legislation that has come to us from the House of Commons. That is a sign of our industry, our expertise and our determination.
§ Lord Williams of Mostyn
My Lords, as I always know, the noble Lord, Lord Renton, has the figures at his fingertips. On many occasions the amendments are government amendments and government amendments of a technical and textural kind tend to imply that there has been an original failure and possibly even an original sin.
§ Lord Kingsland
My Lords, I believe that there is a distinction between the drafting of legislation and the scrutiny of legislation. As I understand it, this debate is about the drafting of legislation, its clarity and its usefulness to the general public. The noble and learned Lord has raised issues about the scrutiny of legislation and the manner in which this House scrutinises it. I make no complaint about that; but I hope that the noble and learned Lord will accept that there is a distinction. The two issues are obviously related but they are nevertheless distinct.
§ Lord Williams of Mostyn
My Lords, I do not accept that for a moment. I do not think that they are distinct. If we continue along that path we shall never achieve decent legislation. I listened most carefully, as I always 1226 do, to the noble and learned Lord, Lord Brightman. His six categories are irretrievably and rightly linked with drafting because drafting cannot be distinguished from scrutiny. Once we have proper, effective scrutiny in this House, which means changing our working practices, that will have an inevitable consequence. Legislation will be better drafted.
One of the answers is to increase the resource in parliamentary counsel. They are extremely highly skilled technicians. Their work is of the highest quality but there are too few of them. We ask them to do too much too late in the day. One remedy is to increase their number. We have increased the number from 36 in 1997 when this Government came to power to 43 today. We are therefore on target to 47 full-time counsel. They are exceptionally highly gifted and skilled. One of the dangers in all governments is putting too late to parliamentary draftsmen their policy instructions. I shall give way to the noble Lord, Lord Hooson, in a second, because I do not want to lose my next invaluable pearl.
I put this forward to your Lordships in a genuinely co-operative spirit. One way to improve scrutiny which would undoubtedly improve drafting is to wonder whether the carry-over rule has any sensible function. If we do not have that rigid carry-over rule and, nevertheless, have done extremely good work on Bills, would it not be wiser to accommodate at least some Bills in a carry-over system?
§ Lord Hooson
My Lords, does the noble and learned Lord also think that there is inadequate scrutiny and inadequate time for scrutiny in another place? I recollect from my days in another place that the process there is more streamlined and does not achieve as much. There is, therefore, more work to be done in your Lordships' House. But part of the remedy surely lies in another place.
§ Lord Williams of Mostyn
My Lords, that may well be so. However, at this time when we are defining our functions, our critical function should be the scrutiny of new legislation. As the noble Earl, Lord Attlee, indicated, it may well be the review of existing legislation. One of the reasons why we should be composed differently from the House of Commons—in other words, not wholly elected—is that we bring a different range of skills, experience and expertise to a different category of work. It may well be that the House of Commons fails to give adequate scrutiny but that should be no excuse why we should not redouble our efforts.
The noble Earl, Lord Attlee, asked about the attachment to statutory instruments of diagrams and so on. I put it generally; I think that it is a fair paraphrase. He knows that where appropriate maps and diagrams are sometimes attached. Where they are not, it is because of the fear of ambiguity which, as he knows with his experience, obtain in technical drawings as easily as in verbal descriptions.
The noble and learned Lord, Lord Howe of Aberavon, said that we need the machinery to make these desirable consequences occur. I agree entirely. 1227 But that is in the hands of this House. If we are determined to set up machinery which will work, it means extra financial resources, extra clerking resources for the committee—again, that is a difficult skill—and the extra resource of noble Lords determined to do the work for which we are supposed to be here. I had thought that the noble and learned Lord, Lord Mackay, was about to intervene.
§ Lord Howe of Aberavon
My Lords, I do not question the validity of the noble and learned Lord's point. Of greater importance surely is the continued enhancement on a much larger scale of the offices of parliamentary counsel. It is the time and resources that they are given that enables the product to be in a far better condition when it reaches either House. The six principles of the noble and learned Lord, Lord Brightman, have to be applied when preparing the primary product.
I agree with the noble and learned Lord that we may have to enhance our own resources. But of far greater importance is the enhancement of the primary workforce.
§ Lord Williams of Mostyn
My Lords, I have already made that point. We are not in disagreement. 1 repeat the figures. There were 36 parliamentary counsel when we came into office. Our target is 47. We have got up to 43. Parliamentary counsel have a distinct and rare skill.
I do not believe that these topics are capable of being distinguished. They must work together. I have heard nothing today with which I fundamentally disagree as a matter of principle. The noble Lord, Lord 1228 Goodhart, said that we do not use IT effectively these days. Most speeches in the House of Lords, siting judicially, are available on the Internet that afternoon. That is a distinct forward step.
I was grateful to the noble Lord, Lord Kingsland, who mentioned that Explanatory Notes have been a success. They were somewhat derided by those who were able to remember that it was never like that when they were a pupil. That is normally the conclusive argument that one hears on these occasions. Advance drafting is now more available. Pre-legislative scrutiny is also available. A number of Bills have been the successful objects of pre-legislative scrutiny. Noble Lords will not want me to give too many illustrations but, for instance, the Welfare Reform and Pensions Bill, the Limited Liability Partnerships Bill, the Financial Services and Markets Bill and the Food Standards Bill were all helped by pre-legislative scrutiny. A vast raft of Law Commission material is still available. I know that the noble and learned Lord, Lord Mackay, will point out to me that, although it appears non-politically controversial, some of it is: a good deal of it is not and it should be capable of being looked at in the fallow, arid dead times of the summer.
I am sorry that I have gone over my 11 minutes but it was deliberate to address the principled approach your Lordships have all expressed. The gloomy consequence to which I come is that we do not do our work properly. The better, more hopeful, conclusion is that we could. I believe that we can only do that if we attend to the way we work in a rather more efficient, realistic and—dare I say it?—modern way.
House adjourned at four minutes before nine o'clock.