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National Health Service (Private Finance) Bill [H.L.]

3.38 p.m.

Report received.

Clause 1 [Powers of NHS trusts to enter into agreements]:

Lord Brightman moved Amendment No. 1:


Page 1, line 26, leave out subsection (6) and insert--
("(6) The 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.").

The noble and learned Lord said: My Lords, I believe that plain English should be used in the drafting of Acts of Parliament. My amendment does nothing except turn a subsection of the Bill into plain English. Clause 1 (6) reads as follows:


The subsection tells us that an uncertified agreement is valid if it would have been an externally financed development agreement for the purposes of the Act if it had been certified. But we know that already. Any agreement is by definition an externally financed development agreement if it is certified as such. Clause 1(2), at line 7, tells us that. It reads:


    "an agreement is an externally financed development agreement if it is certified as such".
So what does subsection (6) really mean?

A lawyer will probably be able to work out what subsection (6) is driving at. But what about the manager of an NHS trust; the manager of a bank which is to put up the money for a development; or the building contractor who will build the new hospital? Will they be certain what subsection (6) means?

They can find out what the subsection is meant to say by coming to the House of Lords, going to the Printed Paper Office and asking for the Notes on Clauses. If they do that, they will read:


    "Subsection (6) ... The 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 clause".
The wording is crystal clear. It is also the precise wording of my amendment. Why can we not have that wording in the Bill?

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Subsection (6) is an important provision. Many people involved in the smaller PFI schemes may not wish to go for a certificate if they can safely avoid it because of the delay that may be involved. The Notes on Clauses, and my amendment in the same terms, make it abundantly clear that they can dispense with a certificate if the conditions of subsection (3) are satisfied.

I suggested to the Minister in Committee that the wording of the Notes on Clauses should be used instead of the obscure wording of the Bill. My suggestion received a partial blessing. The noble Baroness said that I raised:


    "an interesting and sensible point".
She helpfully added:


    "anything which adds clarity in that way and simplifies the drafting is entirely to be welcomed".--[Official Report, 19/6/97; col. 1366.]
However, I am told that my wording--the wording in the Notes on Clauses--has been turned down by the parliamentary draftsman.

All I ask now is that your Lordships should say which is plainer English, the provision in the Bill, which states that an uncertified agreement is valid if it would have been an externally financed development agreement if it had been certified as an externally financed development agreement or the Notes on Clauses, and my amendment, which say that,


    "The 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".
I beg to move.

3.45 p.m.

Lord Simon of Glaisdale: My Lords, I support this amendment by my noble and learned friend. We have simply no right to legislate in a manner that is incomprehensible to the people to whom the legislation is addressed and who are primarily concerned, particularly if the matter can be put in lucid and plain terms as it has been by my noble and learned friend, to whom we are deeply indebted. Like many great Chancery lawyers, my noble and learned friend is a gifted draftsman. It behoves us all, including parliamentary counsel, to show a little humility in the face of that.

This is not a new style of drafting. It is a form of drafting based on hypothesis. When I gave evidence to the Renton Committee on the preparation of legislation, I drew attention to a provision in a national insurance Act which went very much on the same lines. I venture to read it:


    "For the purpose of this Part of the Schedule a person over pensionable age, not being an insured person, shall be treated as an employed person if he would be an insured person were he under pensionable age and would be an employed person were he an insured person".
Your Lordships will see the relationship between the two styles of drafting.

The matter was put very plainly by my noble and learned friend. It is extremely important because the legislation is a vital part of the process whereby

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democratic society frames rules which bind of themselves. If the rules are incomprehensible, then the process of democratic legislation has broken down.

The noble Baroness the Minister is perfectly capable of judging this matter for herself. She has noble genes of brains and character built into the double helix of her DNA, which she has cultivated, to our admiration, and demonstrated at both Dispatch Boxes. I say "for herself" because she is indeed left to herself. At the end of every brief that a Minister has are the words: "accept", "reject", or "consider".

Judging by what happened in Committee, I should think it pretty certain that the word "reject" is at the end. The noble Baroness shakes her head. I am very relieved to hear that. In any case, it is for the noble Baroness, who is in charge of the Bill, to accept this amendment if it commends itself to her.

I remember the occasion in the previous Parliament when the noble Earl, Lord Ferrers, was in charge of a Home Office Bill in relation to which the brief undoubtedly ended with the word "reject". He read it solemnly and with increased consternation. In the end he accepted the amendment. I hope that will be a model to the noble Baroness.

Lord Renton: My Lords, I wish briefly, but warmly, to support the amendment moved by the noble and learned Lord, Lord Brightman. The interesting quotation given by the noble and learned Lord, Lord Simon of Glaisdale, was in fact a piece of legislation drafted by a former first parliamentary draftsman who was a member of our committee. We teased him about it a certain amount. He had the grace to say that we should draw attention to it in an appendix to our report--the noble and learned Lord quoted that. He conceded that it could have been done better.

What I find very interesting about the amendment is that the noble and learned Lord, Lord Brightman, was prompted to draft it having studied the Notes on Clauses. The Notes frequently declare the Government's intention as to what the legislation should contain. However, instead of sticking to the simple language of the Notes on Clauses, the draftsman very often thinks that he has to elaborate it in what he considers to be more legal English, and defeats his own purpose in doing so.

I stand open to correction, but I believe that this is the first time that an amendment has been tabled in identical language to that contained in the Notes on Clauses. I hope that the noble and learned Lord, Lord Brightman, has perhaps introduced a useful precedent.

Noble Lords: Hear, hear!

Lord Renton: As the noble and learned Lord, Lord Simon of Glaisdale, said, we have a duty to make our laws easily understood, especially to those who have to observe them. Sometimes our laws are rather technical and those who have to observe them may not have had any kind of legal training. They may be technically excellent in their own work but not in legal matters. It is therefore essential that we should try to get the matter right.

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I hope that I am not out of order in concluding with a very general comment. We know from the Queen's Speech that a great deal of legislation will be coming before us, particularly in this Session of Parliament and the next. I believe that we should, as far as we can, follow the example of the noble and learned Lord, Lord Brightman, by being vigilant and trying to improve it whenever necessary.

Lord Hooson: My Lords, from these Benches I congratulate the noble and learned Lord, Lord Brightman, on raising this very important matter. It seems to me that he flatters lawyers when he says that subsection (6) can probably only be understood by a lawyer. I did not understand it; its meaning only became clear when I turned to the noble and learned Lord's amendment. I had not had the wit to go to the Notes.

The noble and learned Lord raises a very important point. We are continuing with an old style of draftsmanship which is no longer relevant or acceptable. The new style, which, on this occasion, happens to have been imported from the exact language of the Notes to help people understand the original draftsmanship, shows that we have reached a watershed. The House and the legislature should consider whether it is time to adopt the new style of direct-approach English imported into the amendment. I am sure that the House will be intrigued to hear the noble Baroness's answer. When a former Law Lord puts down an amendment which he says spells out exactly what the legislature intends, is the parliamentary draftsman's view nevertheless to take precedence?


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