|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Those phrases are often used interchangeably, although not by the noble Lord, Lord Renton, as he made clear, or by some other noble Lords. The phrases are also used in different ways by different commentators.
That point was illustrated as recently as Monday of this week, as the noble and learned Lord, Lord Mackay of Drumadoon, reminded us in the debate on Amendment No. 1 moved by my noble friend Lord Mishcon during the Report stage of the Human Rights Bill. As your Lordships will recall, during that debate a number of definitions were advanced to describe statements of purpose or principle. My noble friend Lord Mishcon referred to a summary of,
The noble Lord, Lord Lester, who was quoting the noble Lord, Lord Renton, referred to the desirability of purpose clauses in cases where legislation is fulfilling international treaty obligations. He reminded us of that this evening. The noble Lord, Lord Renton, himself emphasised the importance of helping users of legislation--not just judges and lawyers--but,
It seems to me that there are at least three distinct things which are covered by the phrases "statement of purpose" and "statement of principle". A first meaning is a reader's guide to the material in the rest of the Act. Such statements are not intended to have any legal effect.
The second meaning is guiding principles according to which the rules set out in the legislation are to be interpreted and understood. In this case a legal effect is intended: the statements are there to condition how the courts construe the legislation. As the noble and learned Lord, Lord Simon of Glaisdale, put it on Monday,
This sort of clause might also convey something about the wider policy context of the legislation--the behaviour or consequences that Parliament wishes to discourage or promote by means of the legislation. A number of examples of that have been given, notably by the noble Lord, Lord Henderson, in his admirable exposition of the Crime and Disorder Bill.
The third meaning is that an Act should begin by stating general rules, like Euclid's axioms, with the subsequent detail in the Act showing, like Euclid's theorems, how those general rules apply in particular circumstances. Starting off with explicit general rules, the argument goes, may make the detailed rules easier to grasp and will also provide a basis for settling cases for which no detailed provisions have been made.
Before I discuss these three meanings, there is a separate approach which I should mention briefly--"general principles drafting". This is confining legislation to general rules and leaving their application in particular circumstances to administrative action or to the courts. This approach is said to be more used in some other countries which have different constitutions and traditions. I am conscious that legislation presented to the French legislature is called a projet de loi, rather than a law itself. That implies to me some element of incompleteness, compared with the way in which we approach legislation.
Be that as it may, this approach has been little used in our legislation in modern times, because of the dangers involved. They could include creating uncertainty about what the law is in particular circumstances; more frequent litigation because of the uncertainty, increasing the cost of complying with the law; and a substantial shift in the balance of law-making from Parliament to the courts or to the executive. Few people have argued for a move to general principles drafting in the radical sense that I have described.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Might I give him an example to illustrate the real difference between principles drafting and highly detailed drafting that leads to the disease of legalism, unnecessary litigation and uncertainty. It is the example that I was giving about my visit to the Attorney-General, Sam Silkin, and so it is quite a good one to take. If you look at the definition of "unlawful discrimination" in Section 1 of the Sex Discrimination Act, it reads like something out of Euclid or out of an income tax statute. There is a highly technical, rigid, formalistic statement of the definition of what is known in the trade as direct or indirect discrimination.
Words such as "requirement" or "condition" are used. It is very specific language. That has led to 20 years of dispute in the courts in this country and in Europe. If, instead, general principles had been used for the key definition of discrimination, and looser language--for example, "substantial disadvantage", "less favourable", and so on--I should have earned a good deal less money arguing in the courts, but, what
Lord McIntosh of Haringey: My Lords, heaven forbid that the noble Lord should be prevented from earning the money in the courts that he so richly deserves. It will not be part of my position that there should never be purpose clauses or statements of principle. Of course I am always interested in further examples which appear to support the appropriate use of purpose clauses.
I think, as I shall suggest later, that the argument is by no means as clear as has been indicated by a number of noble Lords who have spoken. I was speaking about general purpose drafting which is rather different from the point that the noble Lord was making. It is general drafting in the sense that it is a statement of general purpose instead of the more detailed drafting of legislation. I always sympathise with those who argue for shorter and clearer legislation. That is never in doubt, but when the noble Lord, Lord Renton, refers, as he did in his Statute Law Society lecture, which he was good enough to send me, in his fourth recommendation, to the desirability of more general purpose drafting, I believe that he will agree that that was not the conclusion of the Renton Committee in 1975. There was not a general view that general purpose drafting in place of detailed drafting was a desirable procedure.
Lord Renton: My Lords, I hope that I have not at any time misled anyone. I have never taken the view that the aim of purpose clauses was to dispense with detail. It was to lead to a better understanding of detail that such clauses have, within my knowledge, always been recommended.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for that clarification. I have listened to him on the subject with respect for 15 years and if I have ever misunderstood him, I am deeply sorry. There has been support this evening for including in legislation statements of principle or purpose in one of the three categories that I described at the beginning of my remarks. The objective of the first type of statement is to help the reader and the user of legislation to understand it more easily by providing an overview of what the legislative text covers. The issue is not whether this kind of information would help the readers and users. Clearly, it would. The issue is whether it should be included within legislation or provided separately.
Although such material would not be intended to have any legal effect, the courts may nonetheless give it a legal effect because it is part of the legislative text. Whatever effect they give it will necessarily be wrong because the material was never intended to have any legal effect. Generally speaking, therefore, the Government's view is that material which is there
The other two categories of material were "guiding principles" for interpreting the text and "statements of principle" on which the detailed legislation was based. Both those are obviously intended to have a legal effect and, when used, should therefore certainly be included in the legislation.
Both sorts of material can be found in various Acts in recent years. A number have been referred to in this debate and I have ready a file on others in case of a challenge. However, there is good reason not to include such statements in Acts as a routine practice.
As to guiding principles, the danger is that they may be open to interpretation in many ways. The result is vague law: citizens cannot know with any certainty how it affects them in their particular circumstances. That approach can have a place, but it must be used with great caution and in appropriate cases, where Parliament wishes to condition the discretion it gives to the courts.
As to statements of principle, the problem arises from duplication. There is a real risk of inconsistency between the statement of principles and the detailed provisions in the Act, because the same thing is being said twice in different words. That view has been taken by successive Governments and they have been supported by the two major reports on the law-making process to which reference has been made.
With great trepidation in the presence of the noble Lord, Lord Renton, I must remind him that, although he set out his committee's recommendations Nos. 13 and 15 upon statements of principle and statements of purpose, paragraph 11.8. of his report concluded--and I understand that it was a conclusion of the report itself--that such statements should be used only "selectively and with caution".
We must be particularly cautious about that, when we are told by a number of people, including, on Monday, noble Lords such as the noble and learned Lord, Lord Browne-Wilkinson, that a purpose clause can do no harm and might do some good. There are circumstances when a purpose clause could do harm, I think, if it brings in contradictions within the text of the law between a general statement and the detailed description.
However, more light will be thrown on these issues next month. I am sorry for taking more time than I should, but we are within the one-and-a-half hours. I hope that noble Lords will forgive me, particularly since I was interrupted.
Your Lordships will be aware that the Inland Revenue is undertaking a major project to rewrite existing direct tax law in a clearer, more user-friendly way. That is being carried out with the guidance of a committee chaired by the noble and learned Lord, Lord Howe of Aberavon. Some who are eminent in the tax field argue for greater use of purposive drafting in tax legislation. Others, however, are concerned that that would undermine the certainty provided by tax legislation.
The Inland Revenue's tax law rewrite team is exploring, without commitment, the issues raised by purposive drafting in the context of its project. The team aims to publish a working paper next month which will illustrate various approaches to purposive drafting and advance understanding of the role it might play in the rewrite. Although this work will deal only with direct tax legislation, it will be of great interest in relation to the issues we have been discussing this evening.
I said earlier that I would return to the question of explanatory material. Here, as some noble Lords said--the noble and learned Lord, Lord Brightman, in particular--there has been an important develop- ment since our short Starred Question debate on 11th November. Both our procedure committee and the modernisation committee in another place have endorsed a proposal by the First Parliamentary Counsel for a major improvement in the material provided alongside Bills.
The new material will be set out in explanatory notes. Those will subsume the material at present contained in the Explanatory Memorandum and Notes on Clauses but extend and improve it. The notes will be made available alongside the Bills when they are first published, not at Second Reading, updated when Bills move from one House to the other and updated finally at Royal Assent. I do not think I can promise the noble Lord, Lord Lester, that they will be available free in hard copy. That would be a great precedent in government publishing, particularly since we charge for the Bills themselves. However, as he reminded the House, they are certainly available on the Internet.
Like the present explanatory memoranda, the notes will not constitute legislative text and will not be amended or passed by Parliament. They will be prepared by the department responsible for the Bill. The First Parliamentary Counsel has provided two examples showing how the new notes, by explaining the key points of legislation in non-technical language and setting out relevant background material, can assist the reader to understand legislation. The examples are reproduced in the Second Report of the Select Committee on the Modernisation of the House of Commons.
On the issue raised by the noble Lord, Lord Lester, as to whether they can be taken into account in the courts, alongside anything I say following the case of Pepper v. Hart, the only answer I can give is that it is for the courts to decide what attention they should pay to them.
I suggest that the phrase "whenever necessary or advantageous" begs the question. If we knew when they would be necessary or advantageous and could say so in advance, we could issue instructions of that kind. I have to say to the House that we will not issue the instruction for which the noble Lord, Lord Renton, asks. But, conversely, we will certainly not instruct them not to because we believe with him and all noble Lords that there are circumstances where they are appropriate. They are used from time to time where they are required and are intended to have legal effect. The improvements in the explanatory material to accompany Bills and Acts should meet the concerns
Lord Renton: My Lords, I have no right of reply and I have no right to ask a supplementary question. However, I wish to express my appreciation to all noble Lords who have taken part in the debate. I mention especially my noble and learned friend Lord Mackay of Drumadoon, who was debating in the House on Monday, went to Scotland and returned to take part in the debate. I am most grateful.
|Next Section||Back to Table of Contents||Lords Hansard Home Page|