Groceries Code Adjudicator Bill [HL]

Debate between Lord True and Lord De Mauley

Thursday 28th June 2012 Grand Committee

[Lord True]

My Lords, I apologise that I was not able to be present at Second Reading because of a local authority meeting. I am also sorry to detain the Committee on an issue that is not solely related to this Bill at this late hour. However, I hope, given the length of the proceedings and that it will take a little time to develop my argument, that Members of the Committee will be indulgent. It is the first opportunity that we have had to comment in detail on a matter that I understand is intended by some to be a pilot to many—if not all—Bills in future. I refer to so-called plain English—or, rather, those cheery questions in italics added above the normal side headings in Bills. My noble friend Lady Byford said at Second Reading, at col. 742 of Hansard on 22 May, that she found these headings “folksy” and not very helpful. The noble Lord, Lord Knight of Weymouth, said at col. 760 that he rather liked them and found that they helped clarity. I do not think that they help clarity.

I tabled amendments to remove Clauses 19 and 21 because I was advised by the Public Bill Office that this was the only way that a Member could raise this question and I did not want to hold up consideration of the rest of the Bill. However, I think that it merits some attention. I have no idea where these new headings come from. I have seen that they are a pilot for plain English legislation, but it seems to me that they must emanate from some quite high-up person in government—one of those well meaning men or women with time on their hands and clearly unworldly enough to think that the public might want to read Bills while sitting alongside me on what I hope will be the 7.33 to Twickenham.

As I was not able to speak at Second Reading, I gave my noble friend Lady Wilcox notice that I would question this approach. I did not want her to worry that by opposing Clause 19 I was opposing the whole Bill—whatever I think of the Bill, that is not my aim. My noble friend, with typical courtesy, sent me a swift reply. She told me that the intention was to make legislation more accessible to the public. Her letter referred to the demands of accessibility. I am not sure who they are coming from, but once again I see the smiley face of the high-up person in government come up before my eyes. My noble friend was kind enough not to dismiss my fear that there might be issues of logical consistency, questions on the interpretation of parliamentary intent and, indeed, the risk of value judgments that could emerge if this process spreads. I will illustrate briefly what I mean.

The heading above Clause 19 reads:

“How is the Adjudicator funded?”.

I think that means “funding” in plain English, substituting one word for the well meaning, accessible five.

However, that is not my main point. How many hours in this Committee and others do we spend debating “shall”, “may” or “must” amendments? Big questions turn on those words, and Parliament rightly considers very carefully the appropriateness of each. As regards this clause, the noble Lord, Lord Borrie, has suggested “must” for “may” in line 5; the noble Lord, Lord Knight of Weymouth, has suggested “shall” for “may”; and my noble friend Lord Howard of Rising has just suggested a “must” for “may”. I am not taking a stand on any of those debates.

The Bill is clearly drafted with a “may” in the funding power it affords to the adjudicator. It implies that he did not necessarily take a levy; nor, indeed, need the Secretary of State give consent, grants or loans. Yet the accessible heading says:

“How is the Adjudicator funded?”—

and not “How may the Adjudicator be funded?”. Some might ask, what is the intention of the Government or Parliament? Is it that he will be funded come what may—as the heading implies—or that he may secure funding, as the text of the Bill suggests? I think this is a circle that you can square.

However, we in Parliament do not have the power to amend such headings; that is why I have had to table a clause stand part amendment rather than suggest leaving out “is” and putting in “may”. To my knowledge, presently the courts do not construct any arguments on the basis of descriptive headings in a Bill. But when a new practice comes into the writing of law—and in Bills more high-profile than this—could some creative lawyers bear to stand idly by? What happens when, as here, a heading says that something “is to be done” and the Bill says it “may be done”?

[Lord De Mauley]

I hate to intervene on my noble friend. Perhaps it would be going too far to suggest that he is verging on a Second Reading speech, which I would not want to do that. I happen to know that my noble friend has some quite comforting words to give that might enable him to abbreviate his speech on this clause stand part debate.

[Lord Browne of Ladyton]

Perhaps the noble Lord will allow me to interrupt him, the comfort is to be found if he simply looks at it. The heading applies to Clauses 19 and 20, so the funding that comes from the public purse and the Secretary of State is encompassed under this heading. This is how the adjudicator is to be funded.