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Lord Borrie: My Lords, I should like to give an indication of a view from this side. I recall very well that the noble Lord, Lord Renton, raised this matter in Grand Committee. I congratulate him on following that through and putting his money where his mouth is, as it were, in setting out and drafting in full what he regards as a suitably drafted Clause 4—or, rather, most of Clause 4.
I recognise of course that the noble Lord has many years' experience of drafting, statutory interpretation and all such matters. However, I suggest that innovation in parliamentary drafting is fairly rare, because, without any disrespect to them, parliamentary draftsmen are very traditional people. I find Clause 4 quite easy to read with its use of two simple initials, "D" and "V"—one meaning defendant and the other meaning victim. It is easy to understand to whom reference is being made by those initials. Given that brave innovation by parliamentary draftsmen, which assists clarity not just for laymen and social workers, but even for the lawyers who have to interpret Clause 4 in the future, it would be a great pity to "knock it on the head". That would probably put an end to all innovation from parliamentary draftsmen for
years to come. I do not know any of them and I may be wrong in thinking that they are men and women of sensibility, but they may be sensitive and they may be quite upset if we were to knock on the head that particular attempt, which is useful and should be encouraged.
Baroness Thomas of Walliswood: My Lords, I hesitate to intervene in this battle of the Titans, but I must simply confess that I am with the noble Lord, Lord Borrie, and not with the noble Lord, Lord Renton.
Lord Campbell of Alloway: My Lords, I am with my noble friend Lord Renton. He was after all my sponsor in my introduction to your Lordships' House some years ago and he tried to teach me about its ways, so, inevitably, I am with him. I prefer his traditional form of drafting. I prefer it because, in this clause, "D" wears two hats. Wearing one, he committed the act; wearing the other, he failed to take appropriate steps to stop it. Perhaps because I am a bit of a traditionalist myself, I find it much easier to understand this drafting than that of the Bill. My confusion is compounded in this clause by a totally new form of criminal offence, which one does not have to prove one way or the other. Clause 4(2) does not state which way an offence has to be committed, which is a novel offence of omission. We are therefore moving into a very strange territory and I find the drafting of my noble friend Lord Renton much more comforting than the "D" and the "V" and one thing and another. Of course, I respectfully ask my noble friend certainly not to take the opinion of the House on the matter, because it will suffer considerable erosion in the light of our debates. One would therefore get into a hopeless mess by giving the parliamentary draftsmen instructions to do what they could to put it right. I hope my noble friend will not think me disrespectful if I suggest he does not seek the opinion of the House tonight.
Baroness Howarth of Breckland: My Lords, I spoke about this matter in Committee. Despite the fact that I have not been able to be present at much of this debate for other reasons, I only wish that I could be with the noble Lord, Lord Renton, because I admire him so much. However, I take the other view, simply because, as a social worker and not a lawyer, I find the drafting of the Bill much easier as it is. My colleagues, who are at the front line trying to do the day-to-day job, find "D" and "V" much easier than what is sometimes seen as traditional lawyerspeak.
Lord Carlisle of Bucklow: My Lords, at an earlier stage of the Bill, the noble Lord, Lord McNally, referred to me as "that wise old owl". All I can say is that I hope that I am wise enough not to get involved in any argument with the noble Lord, Lord Renton, about drafting. I do not propose to do so, but I want to ask one question on a point that he made.
What does the last line of subsection (5) mean? As I understand it, the subsection says that an "unlawful" act is one that,
- "constitutes an offence, or . . . would constitute an offence, but for being the act of . . . a person under the age of ten";
- "Paragraph (b) [the paragraph which contains that wording] does not apply to an act of D".
Lord Mayhew of Twysden: My Lords, my noble friend has done the House a great service in reminding us once again of the importance of drafting. We all remember the seminal effect that the report of his great committee had all those years ago. However, I am afraid that I am an insufficiently wise old owl to suppress an impertinent desire to take issue on a minor matter. If my noble friend agrees, he might be able to remedy it at the remaining stage of the Bill.
It is a drafting matter. I venture to suggest that in his amendment, at line 4, the word "and" is superfluous if the word "who" appears in the next line. It is a grammatical matter. In the Bill as drafted, the word "who" does not appear at that point. He may on reflection think that I am not being too terribly impertinent in pointing that out.
Lord Renton: My Lords, I included the word "and" because it was in the Bill as drafted and it does no harm there—in fact, it has some advantage. I was merely trying to improve the drafting by getting rid of this new convention of using capital letters. It seemed to me that the word "and" could well be left in.
Lord Mayhew of Twysden: My Lords, that would be true if the word "who" had not been inserted into the next line, because it is not in the original text. Without going too heavily into it, I believe that I am right. I used to appear before my noble friend when he was recorder of Rochester, and I never thought that I would be tangling with him on a matter of this sort. Perhaps I may compound it by saying that I believe "D" and "V" to be rather helpful.
Baroness Anelay of St Johns: My Lords, it will come as no surprise to the House that I am very happy to take lessons in drafting from my noble friend, who always has a way of making the difficult seem more intelligible. I certainly do not believe that a draftsman or draftswoman will be offended by any debate on this matter; they might consider it a bit of serious levity, if there is such a thing, at the end of a long and testing day.
My noble friend is right to test drafting. With the examples behind us of the Sexual Offences Act 2003 and the Criminal Justice Act 2003, we are beginning to get into the world of alphabet soup. I am not too sure that that is always the right thing to do.
I am grateful to my noble friend Lord Carlisle of Bucklow for returning to a question I brought up in Grand Committee, about line 21 on page 3 of the Bill, which says:
- "Paragraph (b) does not apply to an act of D".
7 p.m.
Baroness Scotland of Asthal: My Lords, I have the vote so far as "Renton 2, Those against 4". That need not trouble the noble Lord.
I am grateful to the noble Lord for tabling this amendment. I commend him, if I may respectfully do so, for his industry in redrafting the clause to remove the letters "D" and "V", which denote the person charged with the offence and the victim respectively. I know that he mentioned earlier in debate that he was uncomfortable with the drafting, which he did not think was clear.
I am reluctant to agree to the amendment. This style of legislative drafting does not suit everybody, but it became clear in earlier debate that many of us find the use of initials very helpful. It is now a common form of drafting. I know that the noble Lord, Lord Renton, thinks that this is perhaps the first time. I regret to tell him that it is not. This device was used for example in the Criminal Justice Act 2003, the Sexual Offences Act 2003, and the Proceeds of Crime Act 2002. It was also used by the Law Commission in its proposed draft Bill, which accompanied its recent report on this issue, Children: their non-accidental death and serious injury (criminal trials) no. 282. I will not tire the House with a complete list of examples in earlier legislation where letters are used in an effort to simplify drafting. The list is very long indeed and includes Acts such as the Consumer Credit Act 1974, which contains references to persons from A to Z, and the piece de resistance was probably the Local Government Finance Act 1988 which created the community charge. In that Act I found a very interesting calculation that I would like to share with your Lordships. At one stage it says, A B C is the formula to be used. Then, later on the following appears: (P A) + (Q A 1) CC5 I do not think we quite go into that territory, but the "D" and the "V" do have a certain utility and simplicity.
The noble Lord has added "or her" wherever the word "he" appears. I can quite see why he considers that important. But it is an even more long-standing tradition that in any legislation "he" is read as referring also to "she" and the singular is taken to include the plural. This is enshrined in the Interpretation Act 1978, and was stated explicitly there in order to make the draftsman's job easier for the future. So I think that, if I may very respectfully and gently say so, those amendments do not appear to be necessary.
More importantly, the changes that the noble Lord has made will not in fact work. This is because it is not clear which of the various "that persons" in the revised clause refer to the person who committed the act which killed the child or vulnerable person and which refer to the defendant who is before the court. The drafting would also remove the requirement that the defendant who knew of the risk to the victim, but did not take reasonable steps to protect that victim, must also have been a member of the household who had frequent contact with the victim. This is very important. If we delete this requirement we will be placing on everyone who knew of the risk to the victim a duty to take steps to prevent the harm, or face a criminal penalty. So this might include a neighbour, a doctor, a teacher or a social worker who was aware of the risk. Of course, those people would be doing what they could in their professional capacities, but they do not and should not face the same duty to intervene that is incumbent on a member of the household. The noble Lord's amendment would make the responsibility too wide.
If I may respectfully say so, the amendment of the noble Lord, Lord Renton, does help us because it demonstrates how very difficult it is to get the clarity we need and seek without being quite rigid about saying "D" and "V". I am positive that the noble Lord would not wish the confusion that I have just described to come about.
I am sorry that the explanation I gave on the last occasion was not sufficiently clear; I did try to make it so. Line 21 of page 3 of the Bill states:
- "Paragraph (b) does not apply to an act of D".
I commend the noble Lord, Lord Renton, for giving us perhaps one of the most delightful 10 or 15 minutes that we have had for some time.
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