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Acts of Parliament: Drafting
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.
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.
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 XDrafting 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:
- XNothing 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".
- XThe 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
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, XThe Secretary of State" and Xperson" 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
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 be 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.
- XLet's kill all the lawyers"
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