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Lord Renton: My Lords, I am glad to follow the noble Lord, Lord Henderson of Brompton. He was a valuable member of the committee on the preparation of legislation. The report of that committee, of which I had the honour to be chairman, is the only official report on the drafting of legislation that has been presented to Parliament in the past 120 years. It is however a very good thing that the Hansard Society decided to hold another inquiry.
I should like to congratulate the noble Lord, Lord Nathan, not only on initiating this debate but on the kind way in which he referred to the little bit of local difficulty that I have been having. I, too, greatly regret the absence of my noble friend Lord Rippon of Hexham. Indeed, had he been here, I would have given him advance warning that on one important matter I shall have to disagree with the findings of his commission. I pay tribute to the noble and learned Lord, Lord Simon of Glaisdale, for all his influence over many years towards improving the drafting of statute law.
In the main I agree with the Hansard Society report, but especially with its recommendation that the Attorney-General in England and Wales should be responsible for parliamentary counsel, just as the Lord Advocate is responsible in Scotland. It is absurd to have the Lord Advocate responsible on one side of the Border and on the other side the Prime Minister, who cannot give a moment's time to the policy or the output. Perhaps I may say with great temerity that in my opinion, broadly speaking, Scottish legislation is better drafted than is other legislation. I have corresponded with every Prime Minister except one since 1975 on this question of responsibility. I am afraid that the answers are not of a kind that it would be helpful to put before your Lordships.
However, it is those statements which help to achieve certainty, especially when detailed provisions are ambiguous or obscure in their meaning. Our committee received evidence from the top judges on both sides of the Border; and every single one of them implored us to get the underlying intentions of Parliament made clear in every statute so as to ease their difficult task of interpretation.
Perhaps I may give an example. In the Children Actsnot only the 1989 Act but in some of its predecessorsthere is a provision that says in effect that in interpreting and applying the provisions of the Act the interests of the child shall be regarded as paramount. A long and very detailed statute follows; and what a wonderful guide to interpretation that is! So I really cannot agree with the Hansard Society when it states that if guidance like that is given it leads to a conflict. I am sorry to have to say so, and I am being more blunt than is customary in this House, but I believe that that is quite unacceptable as a statement.
The overriding advantage of purpose clauses is that they are approved by Parliament. They have the full force of law. They are contained in primary legislation. That is much better than a fallback solution of Notes on Clauses, even those which have become Notes on Sections and are prepared after the Act has had Royal Assent. They would be prepared by officials. Parliamentary draftsmen may be asked to help, but one draftsman wrote to the The Times a year ago saying that they simply did not have time, that they had to move on to prepare the next Bill. The fallback situation that the Hansard Society Commission recommends is not the best solution.
My noble and learned friend Lord Howe, in a most interesting speech, pointed out that our statute book gets longer every Session. That is not so much because there are more statutes but because officials, MPs and occasionally we ourselves try to cover every hypothetical contingency. But then in practice, in coming before the courts, contingencies arise which have never been thought of. When that happens, what are the poor blessed judges to do if they are not to be given the underlying intention of Parliament? We really must have purpose clauses. I say to my noble friend the Leader of the House, whom I am delighted has been given the responsibility of answering this debate, that I hope he will persuade his Cabinet colleagues that Ministers should take the responsibility. Each Minister is responsible for his own Bill. It is not officials who are responsible. Every Minister should order officials and parliamentary draftsmen to make the underlying intentions of Parliament clear whenever that is necessary. Sometimes in a very long Bill there may have to be half a dozen purpose clauses. Sometimes, as in the Children Act, one will do. But it must be done.
Finally, and as part of my main themeespecially in the presence of the noble Lord, Lord Lester of Herne Hill, who has given such great thought to these matters and whose speech we also enjoyedI feel bound to refer to Pepper v. Hart. That is also regarded as a suitable alternative or fallback position. But anyone who has piloted a Bill through either House of Parliament knowsalthough none of the judges except the Lord Chancellor who was on the judicial committee of Pepper v. Hart has ever had that responsibilitythat Ministerial statements fall far short of legal certainty. One cannot get away from that.
Why is that the case? First, I know, one has sometimes had to submit to persuasion at an early stage of a Bill and at a later stage has contradicted what one said. Counsel appearing in a case would have an awful
Lord Lester of Herne Hill: My Lords, before the noble Lord sits down, perhaps I may say that I do not wish to re-argue Pepper v. Hart before your Lordships' House. It would be highly inappropriate for me to seek to do so. I quite agree with the noble Lord, Lord Renton, that recourse should be had to the parliamentary record only where legislation is defective in its text because it is ambiguous or apparently absurd. There must be clear limits to the use of the Pepper v. Hart exception by the courts.
I wonder whether the noble Lord, Lord Renton, is aware that, during the course of argument, the Attorney-General made to the Appeal Committee precisely the kind of point made by the noble Lord. The noble and learned Lord, Lord Ackner, who is too modest to say again today what he said on that occasion, interrupted the Attorney-General and asked, "Mr. Attorney, is the proposition that a Minister should think before he speaks inimical to the proper processes of government?" The Attorney-General found it difficult to reply.
Lord Ackner: My Lords, on that happy note, I rise intending to limit my submissions to commencement orders. But perhaps I may say to the noble Lord, Lord Renton, that I was a party to the decision which is not his favourite one; and that ever since it was in the Law Reports, I have observed no problems of any kind and quite a considerable degree of assistance. We have been following what I understand is done in Australia and New Zealand, which we were told caused no problems at all.
I turn to the subject of commencement orders. They usually allow the Minister to appoint a date or dates for the coming into force of one or more provisions of an Act. I submit that they are capable of being productive of two quite different vices. First, it gives rise to the absence of parliamentary control; secondly, it enables the Government to ignore reality by not being obliged to think through the consequences of their legislative proposals, thus giving Parliament a false sense of security.
Perhaps I may illustrate my propositions by three examples which have all occurred this year. The noble Lord, Lord Lester, referred to the position of the victims of violent crime. I shall refer to that situation very shortly. I am acutely mindful of the fact that there is a pending appeal from the decision of the Court of Appeal and I shall in no way make any observation about the legal situation. I am concerned purely with matters of constitutionality. I shall refer merely to one or two dates to show how the absence of parliamentary control is illustrated by that particular situation.
In 1964, 30 years ago, provision for the compensation of victims of crime on an ex gratia basis were brought into force, in order to see how it would work out. It appeared to work very well. In 1979, some 15 years later, the Royal Commission under Lord Pearson, of which the noble Lord, Lord Allen of Abbeydale, was a member, approved of the compensation and the basis of that compensation, which was common law damagesdamages which the victim would have received if he had successfully sued the criminalbut suggested that it should be put on a statutory basis in order that Parliament should exercise control over a situation in which a large amount of public money was being spent. The Government accepted the recommendation but did nothing.
In a debate in 1984, the noble Lord, Lord Allen, drew attention to the situation and the Government again confirmed that the scheme would be put on a statutory basis. In 1988, the Government, in the Criminal Justice Act of that year, introduced detailed legislationfound in Sections 108 to 117 and Schedules 6 and 7to do precisely that; and in Section 171 an obligation was placed on the Minister to bring those provisions into force.
In 1993, without any consultation, a White Paper was produced by the Government which provided a radically different ex gratia scheme: the tariff scheme. In June of this year this House made to the Criminal Justice and Public Order Bill an amendment which was later defeated in another place, which required the Government to carry out their statutory obligation as contained in Section 171. There were many voices which said that the Government, through the use of the commencement order, had committed an abuse of parliamentary democracy.
My second example relates to the Courts and Legal Services Act 1990, to which the noble and learned Lord, Lord Simon of Glaisdale, referred. Under Section 58 of that Act, the Lord Chancellor was given the power to provide by regulation for speculative litigation to be permissible. It was not permissible prior to the Act as it was considered to be contrary to public policy because of the danger of a litigant being exploited and the prejudicial effect that it might have on the interests of justice in giving a lawyer a stake in the proceeds of litigation. In the teeth of oppositionamong others from seven Law Lords, the Master of the Rolls, the former Lord Chancellor, the Royal Commission under the noble Lord, Lord Benson, the Government's White Paper in 1984 and a report by the Law CommissionSection 58 was passed.
A year later, in 1991, there was a consultation document provided by the Lord Chancellor which proposed that the lawyer who was successful should be able to increase his fees by 10 per cent., so that the successful litigant would himself have to pay 10 per cent. of the lawyer's fees, the rest coming from the unsuccessful defendant. The Lord Chancellor's very own Advisory Committee thought that that was sensible. Two years later, in May 1993, the Lord Chancellor doubled that figure to 20 per cent. That was not apparently acceptable to the solicitors who contemplated becoming parties to the scheme, and in August 1993, without any further consultation with his Advisory Committee, the amount was increased to 100 per cent.that is 10 times the original proposal.
The Lord Chancellor's own Law Advisory Committee was so affected by what it considered to be the "startling complications", it issued a press notice requiring the Lord Chancellor to think again. He is still thinking about it. Last November there was a debate in this House under an Unstarred Question on the draft regulations, which are not yet in final form. They are still not in final form. We must expect that, if they ever come into final form, it will be in 1995.
The other example arises under the Judicial Pensions and Retirement Act 1993. Under that Act the retirement age for judges was reduced, as they themselves had initially suggested, to 70 but at the same time there was brought into force a proposal that they should have to work an additional five yearsfrom 15 years to 20 yearsto earn their pension. That is exactly twice the time a judge has to spend earning a pension in the United States, in Canada and in Australia, and was dubbed by The Times as "an absurd anomaly". The interesting thing is that the Act was passed in 1993. At that time there was great pressure for more judges to be created and, ultimately, after the Act was passed, 10 more judgesHigh Court judgeswere created. But the Act was not brought into force. The Act still has not been brought into force.
The Lord Chancellor recently announced that he was going to increase the establishment of Law Lords by two and the Court of Appeal by three. That means at least five new judges in the Court of Appeal. When one takes into account that there are resignations soon to come, both there and in the High Court, there will be a requirement for another batch of some 10 judges. In the course of his statement supporting that order the Lord Chancellor said that he "expected" that the Act of 1993 would come into force in 1995. I am prepared to wager that it will not come into force until that large batch of judges is appointed, for the very simple reason that if the matter had been properly thought through it would have been realised that one cannot achieve the quality that is needed if one downgrades pensions in the manner in which it has been done.
Those are merely examples of legislation not thought through, examples of self-induced myopia by the Government, thereby depriving Parliament of seeing the reality of the true position.
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