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Lord Renton rose to ask Her Majesty's Government whether they will instruct government departments and parliamentary counsel when drafting legislation to include purpose clauses or statements of principle whenever necessary or advantageous for making clear the intention of Parliament.
The noble Lord said: My Lords, let me make clear at the outset that this Question is not an implied criticism of the Government. Indeed, much of their legislation is drafted with clarity and certainty of legal effect; but, as with previous governments, some of it is a mass of detail from which the underlying intention of Parliament has to be inferred. The detail can be incomplete and is sometimes uncertain in its legal effect or ambiguous in its meaning.
Unlike European legislation, our legislation has traditionally been drafted in detail. That is inevitably so when dealing with taxes, social security and much of the criminal law. It has to be so in statutes which impose rights and duties upon the citizens; the provisions must be stated in detail. However, there has for years been a tendency to mention hypothetical cases to cover a subject in the hope that every circumstance that could arise has been covered, whereas in practice other cases arise which have not been covered by the detail. If examples were needed of that, one has only to look at the ancient and more recent sale of goods Acts, the theft Acts and other legislation.
I am glad to see that the noble and learned Lord, Lord Brightman, who was for years a member of the Judicial Committee of your Lordships' House, who attends regularly and applies his mind to our legislation, is to speak in the debate.
The Court of Appeal and the Judicial Committee of your Lordships' House spend a great deal of their time trying to find out what Parliament intended by the enactment of detail. They would not have had that difficulty if the intention of Parliament had been made clear. I am sure that your Lordships will agree that there are three ways of doing that: one is by statements of purpose, another is by statements of principle and the other is through interpretation clauses.
Those three possibilities were considered by the Committee on the Preparation of Legislation, of which I had the honour to be the chairman. That was the only inquiry into our methods of drafting legislation since 1875. There were 14 members of the committee, including the present Leader of your Lordships' House; the noble Lord, Lord Henderson of Brompton, who I am glad to say will be speaking next in the debate; four parliamentary draftsmen, or lawyers who had been parliamentary draftsmen, who were able to give the committee the benefit of their experience, one of whom was a Queen's Bench judge; a Scottish lawyer who became a Lord of the Court of Session; and the late Duke of Atholl, who was, among other things, a publisher with expert knowledge of computers. These, at the time we were sitting--now a quarter of a century ago--were, though not in their infancy, not as
The report of the committee contained 121 conclusions, including 81 recommendations for change and, we hoped, improvement. Of those 81 recommendations, as I understand it, only 39 have so far been regularly implemented. Two recom- mendations--the most important ones, in my opinion--were largely ignored: Recommendation No. 13 on statements of principle and Recommendation No. 15 on statements of purpose. Those recommendations appear on page 150 of the report and I shall take the liberty of reading them to your Lordships. Recommendation 13 states:
The committee did not dwell on Long Titles, which normally state in broad terms the matters included in the Act. They do not often declare the intentions of Parliament; but I am glad to say that sometimes they do. I hope it will not be immodest of me to give an example.
That clearly defines the purpose of the Act. I must confess that in that short Act nothing else was mentioned about "market overt"; it merely repealed the sections of the Sale of Goods Act which gave rise to market overt. However, the intention was clear in the Long Title, and better there than nowhere.
So much for our committee. I should mention that in 1991, for 12 months--half the time that we sat--the Hansard Society held an unofficial inquiry of which my noble friend the late Lord Rippon of Hexham was chairman. It too had a powerful membership. Though it disagreed with our committee on the value of statements of principle and of purpose, Lord Rippon told me some months before he died--I hope that I am not doing wrong in mentioning this because he attached great importance to it--that on reflection he felt that his committee had been wrong in devaluing statements of purpose and of principle. He came round to the view that when a statute contains a mass of detail it would help to understand it if the principles underlying the detail were clearly expressed in one way or another.
Instead of presenting a purely negative view of the problems of detail, perhaps I may give some examples of how to deal with them. A classic example is contained in Section 1 of the Children Act 1989, which states:
My time is up. In conclusion I should say this. I hope that the Government will, in the interests of all the people who are subject to our laws--laws passed by Parliament--accept the constructive suggestions which will be put forward in this debate for removal of doubt and to enable justice to be done more expeditiously.
Lord Henderson of Brompton: My Lords, I am greatly honoured to have been mentioned by the noble Lord, Lord Renton. I enjoyed, all those years ago, serving under him on the committee concerned with the preparation of legislation. I remember, though it is a long time ago, that this was one of the recommendations on which we were most keen. We all subscribed to it, even parliamentary counsel whom we were not expecting to do so.
I should like to speak briefly and, first, to add to the list of purpose clauses given by the noble Lord, Lord Renton, and bring his list up to date. I hold in my hands a very good Bill, beautifully drafted, entitled the Crime and Disorder Bill. It is crystal clear and Part III concerns the criminal justice system and youth justice. Clause 28(1) states:
Again, that is a simple, clear, valuable instruction. Perhaps the office of parliamentary counsel is at last coming round to our view, as would appear to be the case from the superb example before us in this very Session.
Other aspects of our work all those years ago are also reflected in that Bill. We said that we wished for the use of ordinary language so far as possible. The Bill gives an admirable example of beautifully clear language throughout. But in addition to that, the draftsman has almost completely avoided Latin. Clause 27 says, in perfect English,
The other comment I should like to make about the Bill before I sit down is that it is beautifully articulated. Again, that is something which parliamentary counsel have practised for many years; but this Bill is so well written that one can find whatever one wants at a moment's notice. For that reason, I greatly commend it.
Lord Mackay of Drumadoon: My Lords, I begin my short contribution to the debate by expressing appreciation to the noble Lord, Lord Renton, for putting down this Question. When I was first introduced into your Lordships' House, the noble Lord, Lord Renton, was absent, recuperating from illness. In his absence many of my new colleagues talked with great affection about the noble Lord--about how well his recovery was going and how much they were looking forward to his being back among us. When he reappeared and I met him for the first time it was obvious to me not only that he was indeed restored to very robust health but why my new colleagues appreciated his contributions to our deliberations. He introduced himself to me. He handed me a copy of a lecture which he had recently delivered and commended it to me. I also became aware of his report.
As the noble Lord rightly mentioned, the committee which assisted him in the preparation of the report contained a number of distinguished lawyers and parliamentarians. He was kind enough to mention the late Lord Stewart, a former Solicitor-General for
It is a great advantage to all that the Renton Committee report has recently been reprinted. I suggest that it should be compulsory reading for all new government Ministers and should certainly be introduced to new Members of your Lordships' House if they are minded to take an active interest in the detail of legislation. Among other things, it discusses the two topics which give rise to this Question.
In a debate earlier this week on the Human Rights Bill I made mention of the Church of Scotland Act 1921. I do not intend to rehearse the substance of the argument I advanced on that occasion but those noble Lords who have a moment might care to have a look at that short Act. It is a good example of an Act containing statements of principle and purpose clauses. The style used of putting some of that in the preamble is not one that would necessarily commend itself to Members of the Committee, but the Act follows such an approach.
The preamble set out the history of what had led up to the enactment of the Bill. The Church of Scotland was interested to unite with other Churches in Scotland and had prepared certain declaratory articles which were acceptable to them and which were in fact set out in a schedule to the Act. It stated:
As the noble Earl, Lord Russell, reminded us earlier in the week when we were discussing the matter, it is important to remember the history that lies behind a statute. It is one of the purposes of legislation to put into effect what history has agreed should happen. I therefore suggest that it is an Act which may be of some assistance.
In considering what I might contribute to this debate I had occasion to read again the speeches of the members of the Appellate Committee in the case of Pepper v. Hart, which was decided in 1992. I was interested to be reminded that the noble Lord, Lord Lester, appeared for one of the parties in that case. Curiously enough, I was surprised to learn that the Renton Committee set its face against the approach eventually decided by the Appellate Committee of relaxing the rule which had previously prohibited reference to parliamentary materials in the course of litigation. The relaxation introduced by that case, in seeking to help the courts determine the true purpose of legislation, is an objective served by a greater use of purpose clauses and statements of principle. They are of assistance not only to lawyers and judges but to those members of the public who have occasion to read and study the detail of legislation. As members of our society become more rights conscious, to use a somewhat colloquial expression which I do not use in any derogatory sense, it is very important indeed that
I hope I will be forgiven for straying slightly from the remit of the debate to mention a matter on which I should be most interested to hear the Minister's comments. I refer to the progress in achieving a statute database. It would be of tremendous assistance to members of the public to have all current statutes available on a database which could be called up by those literate in information technology in the same way as those interested in parliamentary debates can call them up the following morning.
In my legal career, both as a solicitor and a counsel, I have been involved in many situations where I have discussed with colleagues how we were going to take a matter forward--whether it be the drafting of a contract or some form of agreement, whether it be the formulation of written pleadings, or whether it be the preparation of a letter to be sent on behalf of one's client. Frequently I found myself saying, "Let's just set it down in outline, set out the basic principles of what we want to say, and see what it looks like". I have then been pleasantly surprised to discover that that approach has cut through endless discussions and has shown the way forward. That is a useful guide to how the greater use of purpose clauses and statements of principle could be incorporated in the legislation which lies ahead.
It was my privilege, over the two years leading up to 1st May, to work fairly regularly with Parliamentary Counsel. Contrary to the impression one sometimes gets from reading what judges say about them, they are very able, go-ahead and imaginative individuals who frequently have to encapsulate in the space of a few hours some change of policy on the part of Ministers. If they are encouraged by Government to take forward the approach advocated by the noble Lord, Lord Renton, they will not be slow to take up the challenge. I hope they receive that encouragement. I very much look forward to the Minister assuring the House that he and his colleagues are minded to do so. There is little to be lost and possibly much to be gained. Therefore, I support the noble Lord, Lord Renton, in bringing forward this matter for debate.
Lord Brightman: My Lords, I am immensely grateful to the noble Lord, Lord Renton, for raising this Question. It gives me one more opportunity to plead that Acts of Parliament should be drafted in a form which enables them to be readily understood by those who need to read them. The Renton Report recommended in paragraph 11.8 that statements of purpose should be used when,
of which there were in fact over 100. So this recommendation was among those which topped the list. The wording of the Question in the name of the noble Lord, Lord Renton, to the Government is, to all intents and purposes, the same as the unanimous recommendation of the Renton Committee. Having regard to the distinguished authorship of the recommendation and the importance ascribed to it by the eminent Solicitor-General, it hardly seems necessary to say more in order to secure from the Government a sympathetic answer to the Question posed.
But to add a shade more emphasis, perhaps I may quote from a report from December 1995 by the Inland Revenue. Under Section 160 of the Finance Act 1995 the Revenue were required to prepare a report on the simplification of the tax legislation, to give a summary of recent criticism of tax legislation and parliamentary procedures, and to suggest solutions. The Revenue produced a report of some 35 pages. In paragraph 6.14 the Revenue advised that,
A striking example of this House insisting on the inclusion of a purpose clause was provided by the debates leading to the Legal Aid Act 1988. The noble and learned Lord, Lord Mackay of Clashfern, moved an amendment to his Bill at Third Reading. The amendment read as follows, under the rubric "Purpose of this Act":
It is axiomatic that every Bill has a purpose. Parliamentary draftsmen, Ministers and their officials should, in my respectful submission, always ask themselves, except in the most obvious cases, whether a statement of purpose would or would not make the
While on the subject of purpose clauses I should like to say a word about Notes on Clauses. I have been told, as a result of inquiries that I have made today, that Notes on Clauses are produced for all Bills, but are not released until Second Reading has taken place.
A modernisation committee was set up in the other place last year when Notes on Clauses came under review. Evidence was given to that committee by Mrs. Justice Arden, the chairman of the Law Commission. In her evidence Mrs. Justice Arden said this:
None of us could understand what Clause 1(6) was getting at. The noble and learned Lord, Lord Simon of Glaisdale, said that Clause 1(6) was "incomprehensible". The noble Lord, Lord Hooson, a Queen's Counsel of many years standing, said that he did not understand it. Nor did I.
That made the purpose of Clause 1(6) crystal clear. In the outcome, the subsection was amended virtually in the same terms as the Notes on Clauses. What is manifest is that, if the purpose of the subsection had not been stated, an incomprehensible provision would have been foisted on the public.
Lord Lester of Herne Hill: My Lords, I follow all noble Lords who have spoken in expressing my great gratitude to the noble Lord, Lord Renton, for initiating this debate. I should like to thank also the noble Lord, Lord McIntosh of Haringey, who is to reply in a few moments, for having encouraged the debate at an earlier stage in answer to a Question that I asked some time ago. I join other noble Lords in also paying tribute to the noble Lord, Lord Renton, who is the most eminent authority in this area not serving on the Bench and whose report is a memorable and enduring state paper. I always re-read it with interest and pleasure and I hope that that is true of others.
Perhaps I may first repeat some platitudes which may deserve to find their place in the record. I do so with great humility, following the noble and learned Lord, Lord Brightman, whose judgments in this area, inside and outside court, cannot be improved upon. An Act of Parliament takes effect through the language in which its principles and rules are expressed and through their proper interpretation by the courts. It is essential therefore, for reasons of legal certainty and the rule of law, that legislation should be drafted as clearly as possible in ordinary language and in a manner which reflects the objects and purposes of Parliament in using its sovereign power to make the law of the land.
A literal interpretation of statutory language encourages excessive statutory detail and complexity and breeds legalism. That has been recognised in recent years by our courts which have adopted a purposive approach rather than an approach which is narrowly textual and literal. Our courts have come, in my lifetime, to recognise, in the words of a great American judge, that they should not make,
but should attempt to interpret statutes in a commonsense and purposive way. They should assume--it is a large assumption--that Parliament intends to use its powers fairly and rationally, with due respect for basic constitutional rights, and in accordance with the international obligations to which we are party.
The courts understand that words cannot, to quote the noble Lord, Lord Henderson of Brompton, always be "crystal clear" because words are not like crystals. They are not hard and rigid in their substance. They are softer and more malleable. Nuances require to be interpreted according to a wide range of meanings. That task of judicial interpretation calls for great skill and sensitivity on the part of the judges, but the courts cannot perform that task without an effective partnership with the executive and legislative branches of government.
The central issue raised by the noble Lord, Lord Renton, is whether the courts and ordinary users of legislation would be assisted in understanding the meaning of an Act of Parliament if it contained a clause stating the purposes or principles. Perhaps I may add to the examples that have been given by citing a recent one which, for my purpose, is an example of a perfect statement of principle which really does assist.
That section is unusual in UK legislation but, in my view, it is a most welcome feature of the drafting of that Act. It sets out three general principles, and all the provisions of the Act must be interpreted with those principles in mind. It will greatly help the courts and, even more, it will greatly help the users of that Act.
Of course, as I am sure the noble Lord, Lord Renton, recognises, such a clause is not a panacea and, of course, cannot be automatically required for all statutes, but there are some situations where it performs a vital function. The committee of the noble Lord, Lord Renton, was surely right to observe in 1975 that statements of this kind should be used when they are the most convenient way of clarifying the scope and effect of legislation. As the report indicated, they must not, however, degenerate into pious incantations, such as "Hurray for Nature!" in an environmental statute, or into a mere manifesto. The touchstone is whether they are a useful aid to the courts and the public in discovering and clarifying the scope and effect of legislation.
There was one situation in which the Renton Committee recommended (in paragraph 19.39) that purpose clauses should be used in general practice--that is, regularly. I refer to where legislation is intended to implement a treaty provision or a European Community instrument. I endeavoured to explain during the debate on the Human Rights Bill on Monday (col. 1257)--that Bill seeks to give effect to our international treaty obligations--why, in my view, and in the view of others who are older and much more learned than myself, such statements would greatly assist in interpreting the
To understand the object and purpose of legislation is also essential for Ministers, civil servants and other public authorities so that they understand the proper scope and limits of the public powers delegated to them by Parliament. If a public officer or body acts in a way that is beyond the object and purpose of a statute or in a way that frustrates the statutory object and purpose--if administrative action is outside the four corners of the statute--there is a misuse of public powers amounting to illegality. One further vital function of a purpose clause is to assist in understanding the scope and limits of delegated powers.
Reference has been made to the report of the Hansard Society Commission chaired by the late and much missed Lord Rippon of Hexham. It did not believe that statements of purpose should be adopted as a matter of general practice but preferred another means of achieving the same result, which has been referred to by the noble and learned Lord, Lord Brightman; namely the publication and use of up-to-date Notes on Clauses. Speaking as the guilty counsel in Pepper v. Hart who persuaded the Appellate Committee of the House of Lords to change the two centuries old rule excluding all reference to the parliamentary record in construing dodgy legislation, I now find it wholly irrational that the courts are entitled to read what the noble Lord, Lord McIntosh, says to elucidate what a Government measure means but cannot yet read Notes on Clauses which the Government produce to guide the House on the meaning of the statute.
The Minister has indicated in a Written Answer that this matter is already under consideration by a committee of the other place. I am sure that he would have been as surprised as I was to discover at a conference in Cambridge on Saturday that Notes on Clauses for the Scotland and Wales Bills on devolution had been sought by practitioners and others in Scotland and Wales in vain. They have had the greatest difficulty in discovering them. It appears that the Stationery Office is to print them and charge the public a price to obtain them. I find that quite objectionable, as I do the selling of statutes. If we are to have Notes on Clauses updated in the way that Dame Mary Arden and Lord Rippon's commission recommended--I strongly urge that we should--I hope that they will be updated, made available at an early stage as she has indicated and provided to the public free not only on the Internet but in hard copy.
Finally, there must be a holistic approach. A whole range of recommendations is made by the Hexham Commission in addition to this which desperately requires implementation. I do not believe that that will happen until there is a Minister in charge of the subject. I had the honour to work for the noble Lord, Lord
I have taken my time and have ranged slightly beyond the Question before the House this evening. I have done so because I believe that the Question tabled by the noble Lord, Lord Renton, raises other linked questions and that what he seeks to do--to help the courts and the public--will be achieved only by a combination of measures including purpose or principle clauses.
Lord Henley: My Lords, I begin by offering an apology to the noble Lord, Lord McIntosh, my noble friend Lord Renton and the House as a whole for the fact that I appear at the Dispatch Box for the Opposition rather than my noble friend Lord Kingsland, who is considerably more expert on this matter than I am. I also apologise to the House for my inadequacies in dealing with matters as technical as this. I offer thanks to my noble friend Lord Renton for initiating this debate and, as a result, encouraging me to take a look at the sections of his report, which is now some 22 years old, dealing with purpose clauses. I offer my apologies again and associated contrition for the fact that I never did read them in the days when I was in government. I am sure that the noble Lord, Lord McIntosh, will take note of the advice from my noble and learned friend Lord Mackay of Drumadoon and, if he has not done so already, will read this report frequently, have it by his bedside and, as the noble Lord, Lord Lester of Herne Hill, put it, consult it with great regularity.
That said, much of what I wanted to say has been said probably far more elegantly by the noble Lord, Lord Lester of Herne Hill. It is not often that we agree on most matters. Apart from following him on his latter points, on the substance of his comments on purpose clauses I am in full agreement. They can and should be used on a number of occasions. But he was right to draw the attention of the House to those parts of the report where various advocates in one form or another point out the limits of the uses of purpose clauses. As did the noble Lord, Lord Lester, I refer to paragraph 11.7 on page 63 of the report, where a number point out the dangers of using these clauses on certain occasions. For example, parliamentary counsel took the view that in many cases the aims of the legislation could not be usefully or safely summarised or condensed. There might be a temptation to call for something which was no more than a manifesto which obscured what was otherwise precise and exact. The noble Lord quoted the excellent comments of Professor Reed Dickerson about such clauses degenerating into pious incantations and
I appreciate that purpose clauses can and should be used on occasions and can be of enormous help in assisting courts to interpret statutes that come before them. Only on Monday we saw the difficulty that could arise in interpreting Bills as they are perused and go through the House. The noble Lord, Lord Lester, will remember that in relation to one amendment the Government offered a concession to the noble and learned Lord, Lord Simon of Glaisdale, which took a good half hour of our time. The argument appeared to be whether a clause should contain the words "one of" or the indefinite article "a". I did not exactly follow the details of the arguments in relation to that particular amendment. It may be that there was considerable substance in them, but I have some doubts as to whether it was necessarily a good use of the time of this House. I also have some doubts as to whether the courts would not find equal confusion whichever set of words was used. Certainly there would be occasions when the job of the courts would be made easier should purpose clauses be followed.
Having said that, for fear that the noble Lord interprets all that I have said as the policy of these Benches and criticises me and my party when in government for not making adequate use of purpose clauses, I stress that on this occasion I speak very much for myself. I had the honour to bring a large number of Bills before the House in my time as a Minister. I suspect that it was only on very rare occasions that there was a purpose clause or even a whole series of purpose clauses in those Bills. I have a sneaking suspicion that a great many of them might have been considerably improved should that have been the case. I am here largely to listen to the response of the noble Lord, Lord McIntosh, and I very much look forward to it. I thank my noble friend Lord Renton for introducing this debate.
Lord McIntosh of Haringey: My Lords, let me start by reassuring the noble Lord, Lord Henley, that there is no party political element in this debate. I have to respond on behalf of government, and therefore I have to be circumspect in what I say, but nothing that I am going to say has, and nothing that any noble Lord has said in this most interesting debate has had, any reference to party politics. I am especially grateful to the noble Lord, Lord Renton, for coming over to assure me that that was not his intention. I was able to assure him that it would never have been my intention in responding to the expert contributions of noble Lords. I believe that all noble Lords are legally qualified, although I am never quite sure about the noble Lord, Lord Henderson of Brompton.
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