Parliamentary Proceedings: Statistics

Lord Hope of Craighead Excerpts

Wednesday 18th January 2017 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I too congratulate the noble Lord, Lord Butler of Brockwell, on securing this debate and on the masterly way in which he has revealed what it is really about. I have to confess that I was attracted to it for reasons that have very little to do with the issue to which he addressed his remarks. My reasons go back to the time which I spent here when preparing judgments as a Lord of Appeal in Ordinary. One of our tasks was to interpret the legislation which emerged from both Houses. From time to time, appeals would come before us which required a close examination of the words used in order to find out what they really meant when they were applied to the facts of the case before us. That was not always easy, as one might imagine. It is the product of the difficulty that I think confronts every legislator, which is that it is difficult to predict every situation to which the words may have to be applied when the legislation takes effect. The words chosen may matter a great deal, and the words used will always deserve careful scrutiny.

One of the tricks of the trade that we who were engaged in this exercise learned from the noble and learned Lord, Lord Steyn, was to look to the Explanatory Notes for assistance. We as Law Lords had the advantage over the justices in the Supreme Court in that all we had to do was to go downstairs to the Printed Paper Office, where they were readily available. Today the preamble to the notes says:

“They do not form part of the Bill and have not been endorsed by Parliament”.


I cannot recall whether those words were there when we were looking at them 10 or more years ago. But we thought it was proper to look at them for such assistance as they might give, on the view that they were part of the travaux préparatoires, as the Europeans would say, to the Bill. We were accustomed to using the travaux when construing international conventions so it did not seem a very big step to look at the Explanatory Notes, and it was information that was readily available. So I take this opportunity to assure those who prepare these documents that they are read and that there are occasions, although perhaps not all that many, when they are particularly helpful.

As for the question that lies at the heart of this debate, it follows from what I have been saying that there is a real value in line-by-line scrutiny. As I have said, we all find it hard to predict the future, and it is hard for even the most experienced and skilful drafter to examine the effect of a clause from every possible angle. The benefit that comes from line-by-line scrutiny is that it offers the opportunity for these angles to be explored in debates to which people from all sides can contribute. The policy objective, the practical effect and the meaning of the words used all need to be examined. But parliamentarians need to be given the time and opportunity to do this. This is not really a serious problem in this House, given the way that we organise our business. I am sure that the Minister knows very well how much value the Government attach to the work that is done here because of the way we work, and how essential our contribution is to the quality of our legislation.

However, there are grounds for concern about what happens in the other place. The best example that comes to my mind relates to what happened last year on the then Scotland Bill. It was exacerbated by the fact that the SNP, which played an active part in the debates in the House of Commons, has for reasons of principle no Members in this House. Coming as I do from north of the border, I tried to trace what its position had been on the various clauses that we were examining here, just in case there were points that it was seeking to make which we might overlook. I found this very hard to do, as it seemed that many of the amendments that it had tabled were not reached. The consequence was that some of the provisions in the Bill were not debated at all in the other place, and I fear that on a number of points of importance that party’s voice was not heard at all in either House. That is an example of the kind of problem to which the noble Lord referred, and I support everything he said in his opening remarks.