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3.37 p.m.

Lord Lester of Herne Hill: My Lords, the Hansard Society and the Commission of the noble Lord, Lord Rippon of Hexham, are to be congratulated. Their comprehensive report contains enlightened, practical and much-needed proposals to improve the way that we make law and understand law. The noble Lord, Lord Nathan, deserves our gratitude for having initiated a debate on a brilliantly informative, critical and constructive report on a subject which affects the quality of law making and the citizen's access to the processes of law making and to the law itself.

As other noble Lords have already indicated, I am very sorry that the noble Lord, Lord Rippon, is prevented from being here today because of ill health. Let us hope that the work of the commission, so skilfully chaired by the noble Lord, will not suffer the fate of so many previous reports on the legislative process, including the admirable report 20 years ago of the noble Lord, Lord Renton, of being debated solemnly and seriously and then quietly relegated to gather dust on library shelves.

The five central principles which have guided and governed the Rippon Commission's recommendations need to be engraved in bold letters on the pillars of the Palace of Westminster and on the doors of every government department. They also need to be fully heeded by Ministers, civil servants and ourselves as parliamentarians. Perhaps I may remind your Lordships of those five principles.

First, laws are made for the benefit of the citizens of the state. All citizens directly affected should be involved as fully and openly as possible in the processes by which statute law is prepared. Secondly, statute law should be as certain as possible and as intelligible and clear as possible for the benefit of the citizens to whom it applies. Thirdly, statute law must be rooted in the authority of Parliament and thoroughly exposed to open

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democratic scrutiny by the representatives of the people in Parliament. Fourthly, ignorance of the law is no excuse. Therefore the current statute law must be as accessible as possible to all who need to know it. Fifthly, the Government need to be able to secure the passage of their legislation, but to get the law right and intelligible for the benefit of citizens is as important as to get it passed quickly. That was a point underlined by the noble and learned Lord, Lord Howe of Aberavon, resisting the making of policy on the hoof in mitigation of his own reforming zeal and lust—a zeal and lust that I share but not always in exactly the same direction.

Year after year the volume of legislation continues to increase at a chokingly high rate, as does its quite bewildering complexity. This makes it essential for the legislative process to conform to democratic ideals, producing well conceived, well drafted and accessible legislation, with as much consultation of affected parties and relevant experts as is reasonably practicable. As the Rippon Report clearly demonstrates, successive governments of whatever colour and successive Parliaments have paid lip service to these ideals without adopting effective measures to implement them.

I shall just deal briefly with two or three of the many topics raised by the report. The commission is surely right to recommend, and the noble Lord, Lord Nathan, and the noble Baroness, Lady David, to emphasise, that the Government should always seek the fullest advice from those affected on the problems of implementing and enforcing proposed legislation. The Rippon Commission concluded that the overwhelming impression from the evidence is deep dissatisfaction. The commission emphasised the importance of timing.

The bodies consulted should be given all the relevant information in good time and, as the commission recommends, there is great benefit in publishing draft Bills for consultation. I also agree with its conclusion that bodies invited to the consultative process should be given the necessary documents free of charge.

As regards commencement orders, I simply wish to register my complete agreement with the powerful observations of the noble Lord, Lord Nathan, on that subject. The failure to bring into force the criminal injuries compensation scheme in the 1988 Criminal Justice Act is simply one recent bad example of the vice.

On legislative drafting, I support all of the commission's recommendations for clarity, simplicity, brevity and the pursuit of the Holy Grail of certainty in the drafting of legislation; and for Ministers, civil servants and parliamentary counsel to do all they can to eliminate unnecessary and complicated detail in the Bills for which they are responsible.

There is too the important question of ministerial responsibility. I warmly welcome the proposal that responsibility for the work of the Parliamentary Counsel's Office and the oversight of drafting methods should be assigned to the Attorney-General. If only that had been the position in the mid-1970s when I was Special Adviser to the Home Secretary, my noble friend Lord Jenkins of Hillhead, we could have had readily intelligible, user-friendly legislation to deal with sex and race discrimination rather than the excessively detailed and technical Bills more suited to income tax legislation.

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Neither the Home Secretary nor the Attorney-General was able to persuade parliamentary counsel to redraft the key definition clause of what is meant by unlawful discrimination. I was told by the Attorney-General, Sam Silkin, that only the Prime Minister could do that. As a result, there have been years and years of costly litigation to clarify basic concepts that could have been dealt with at the drafting stage. I believe that overall responsibility has to lie with a legally qualified Minister and legal advisers. I also agree that parliamentary counsel should review their drafting styles and be willing to learn from best practice in other Commonwealth countries and, I dare say, Europe as well.

The other topic which has been touched on already by the noble and learned Lord, Lord Howe of Aberavon, is the price of government publications. The Rippon Commission received a number of complaints about over-pricing. Its own report, some 400 pages long, is modestly priced at £16 and it recommends that the Government should enable HMSO to price its legislative publications, Bills etc. at well below cost. I was stimulated by the Rippon Report to co-author another report for the Hansard Society entitled What Price Hansard? to look at the problem in greater depth. It is a problem worthy of an entire debate in its own right but I shall just briefly make a few points.

Hansard is quite absurdly overpriced at £11.70 a day for the combined work of both Houses. It is beyond the reach of any but the wealthiest citizens and institutions to buy on a regular basis. The price is seven times what Germans pay, seven times what the Americans pay, 14 times what Australians pay, eight times what Canadians pay, and eight times what the French pay for comparable reports.

Parliament needs to decide to disseminate the Official Reports of our debates as widely as possible. We really need to adopt effective measures to achieve that aim. Public ignorance about what is said and done in Parliament is inimical to good and democratically accountable government. Public ignorance about the law is no excuse for law breaking, but makes it essential for Parliament to ensure that there is a right of access to legislative material at marginal cost. The need for accessible material is especially important now that our courts look at parliamentary debates and other background parliamentary material—post Pepper v. Hart—where the legislative text is unsatisfactory because of either a lack of clarity or some apparent absurdity.

I suggest that it is quite inappropriate that HMSO, the office which deals primarily with Crown and parliamentary copyright, should also administer the copyright on parliamentary publications which, for purposes of democratic dissemination of information, should be treated much less restrictively, whether for printed material or for CD-ROM material. I strongly endorse the Rippon Commission's recommendation that everything possible should be done to make our law and the legislative process as freely accessible as possible to all citizens.

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The central problem is that HMSO is obliged to operate according to purely commercial factors. I suggest it is inappropriate that public documents, including the records of the workings of Parliament and its laws, are treated simply as commercial products. I do not believe that Hansard, Bills, statutory instruments or Acts are commodities whose general availability should be determined by the kind of commercial considerations dictated by HMSO. I suggest that Parliament should undertake, as part of its democratic function as the fount of public information, to deal with this problem as a matter of urgency.

The commission's proposals are well designed to strengthen parliamentary democracy and the rule of law, modernising our outmoded and inefficient law-making processes. The question is not whether these reforms are needed. They clearly are. The real question is how government and Parliament can be persuaded to give effect to them as a matter of urgency and high priority, and beginning, as the noble and learned Lord, Lord Howe of Aberavon, has, I think, indicated, now in this parliamentary Session.

3.48 p.m.

Lord Simon of Glaisdale: My Lords, I presume to follow the previous speakers in paying tribute to the noble Lord, Lord Nathan, on his excellent speech introducing this important document for the consideration of your Lordships. I also congratulate the Hansard Society on having established such a powerful committee, and that committee on having produced such a circumspect and complete view of the legislative process. In particular it not only describes that process but shows how it could be improved. I hope that we shall hear today how far the Government are accepting the specific recommendations.

I presume also to agree with practically everything that has been said so far, in particular about commencement orders. I shall be very surprised if I do not agree with what is to be said hereafter if noble Lords run true to their usual debating form.

I wish to touch on only two aspects of the report. The first concerns what was said about the drafting of legislation. I agree with what has been said so far in the debate, but it is not only the volume of legislation which has increased so dramatically but also the length of particular measures. Statistics have been quoted on a number of occasions and I shall not repeat them.

The Renton Committee recommended, in pursuance of an important memorandum by the senior Scottish judges, that drafting should generally take the form of laying down general rules instead of trying to cover every situation which might be envisaged, as a result of which, in the nature of things, important considerations will be missed.

In a recent debate I quoted from that memorandum and from the Renton Committee's endorsement of it. I repeated that in a letter to the noble Viscount the Leader of the House. I am sorry to say that the reply was all too predictable and it was all too clear who had drafted the reply. It quoted another passage from the Renton Report emphasising the supreme importance of certainty. However, those are not by any means

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mutually exclusive. They would not both have been quoted by the Renton Committee if that had been so. A general rule can be certain. Lawyers among your Lordships will remember the famous rule in Ryland v. Fletcher, which was extremely fruitful in its repercussions and stated with admirable certainty. At present we do not have certainty simply because one or two of the individual situations will have been missed.

What is to be done? It is quite clear now, 20 years after the Renton Committee, that we shall not get any further unless the recommendation of the Hansard Society that the draftsmen should come under the Attorney-General is accepted. It is not the first time that that has been recommended. The Government themselves appointed Sir Robert Andrew, a most distinguished retired civil servant, to advise on the government legal services. He recommended that the draftsmen should come under the Attorney-General. Of all Sir Robert's recommendations that was the one that was not accepted. It is not difficult for anybody who knows Whitehall to envisage the machinations and manoeuvres which went on to defeat that proposal. I know that the noble Lord, Lord Renton, takes the same view about the desirability of the draftsmen coming under the law officer's jurisdiction.

That is the first point, and I hope that the noble Viscount will deal with it specifically.

The second point is a more difficult matter. It is referred to in passing by the Hansard Society; namely, that drafting would be much improved if we reverted to the old role of the legislation committee of the Cabinet. I am quite certain that we would never have had so disastrous a measure as the Child Support Act if that Bill had had to pass under the scrutiny of the legislation committee in its former role.

The last matter that I want to deal with is referred to in the terms of the Motion; namely, the role of your Lordships in the legislative process. That is increasingly important as the other place comes more and more under the domination of the Executive, and, dare I say, the political Executive comes increasingly under the influence of Whitehall. Therefore, your Lordships' role is ever more important.

On the other hand, we see increasing efforts to marginalise your Lordships' role in legislature. There was first the extraordinary invocation of the Parliament Act to pass the War Crimes Act. I believe that it is now generally accepted that that was a complete waste of money and time. However, nothing has been learnt from that. On the contrary, there have been successive attempts to arrange government business so that your Lordships cannot effectively debate amendments before a full House.

When the Courts and Legal Services Bill was before this House the only way to ensure that an important constitutional amendment was debated before a full House was to sacrifice every single preceding amendment on the Marshalled List. The amendment was then debated in the early evening and the Government were defeated. What is more, the Government accepted that defeat.

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Then there was the Child Support Act, which I have just mentioned. We sat late into the evening night after night. The shortcomings of that Bill were clearly identified in your Lordships' House but we were quite unable, as the debate was late at night and the business managers had their little posse outside, effectively to amend that measure, to the great distress and misery of thousands of our fellow citizens and to the great embarrassment of the Government.

The last example is the Criminal Justice and Public Order Bill of last session. An important amendment was introduced by the noble Lord, Lord Carr of Hadley, a former Home Secretary, supported by my noble friend Lord Allen of Abbeydale, a former Permanent Secretary at the Home Office, and by the noble Baroness, Lady Faithfull, who knows more about the impact of penal measures than anybody in the Home Office or in Whitehall, and perhaps more than anybody in the country. Although that amendment was carried and although it was by no means inimical to the policy of the Act, the Government used their majority in the other place to reject it. When it came back to your Lordships' House a number of what ornithologists call rare visitors were present who took no part in the debate and were obviously there for a political purpose.

I ask the noble Viscount to say that it is not part of the Government's policy to frustrate amendments by your Lordships' House where they seem desirable, in view of your Lordships' vast experience and depth of expertise.

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