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Legislative and Regulatory Reform Bill

moved Amendment No. 17: Page 2, line 4, leave out subsection (5). The noble Lord said: Amendment No. 17 stands in my name and that of my noble friend Lord Maclennan. I am glad that we have not had another debate about your Lordships' House going into Committee and that we can get straight on with this. Clause 1(5) states: "““For the purposes of subsection (2), a financial cost or administrative inconvenience may result from the form of any legislation (for example, where the legislation is hard to understand)””." When law is difficult to understand is an uncertain question, but, in any event, this subsection should be left out. Its intent seems to be to revise legislation so that it is easier to understand. Of course, all of us say, ““And a good thing, too””. However, if one looks into this a bit more deeply, one will find, first, that the main problem with understanding legislation is not the difficulty in understanding the words, but the difficulty in finding out what and where the relevant legislation is. There is an endless scattering of provisions among a number of different statutes. Some of the provisions are incorporated as amendments into the original legislation; others are free-standing and not part of the original legislation. Putting statutes in their current form on to an internet database that is accessible to the public would do far more than anything that this Bill authorises to make it easier for people to find out what the law is—so would more frequent consolidation Bills, which already have a simple procedure, as we have seen in the case of a couple of consolidation Bills with which your Lordships' House is now dealing. It is easy to say that existing provisions can be rewritten to make the law simpler and more accessible. That can be done. An example is the tax law rewrite programme—I have been involved with that for some years now. The tax law rewrite Bills go through the ordinary Bill procedure nominally, but they have the consent of all parties and are enacted after very brief debates. However, my experience with the tax law rewrite programme shows that it is extremely difficult to rewrite legislation without to some extent changing it. In fact, many minor changes to the law have been incorporated in the tax law rewrite Bills, which are supported by detailed notes that explain what the changes are; if there is any significant change, it cannot be included. The orders that are to be made under this Bill are unlikely to have anything like such detailed notes and, further, they will probably be drafted by the departmental lawyers and not by the extremely able and highly specialised Parliamentary Counsel Office. One might also ask why it is that legislation is so difficult to understand. If it is difficult for lay people but not for lawyers, that is because of the use of technical language, excessive cross-referencing—so you have to chase up the cross-reference in different legislation—and so on. All those things make it difficult for lay people to follow, but they do not mean that the legislation itself is ambiguous or uncertain. The problem is that, with these technical Bills, which are sometimes drafted in old-fashioned language, you cannot put new wine into old bottles; you have to use consistent language throughout any particular area of legislation. That is why the tax law rewrite programmes have rewritten whole sections of the tax law. You have to use consistent language throughout, and the law needs a full rewrite. If the problem is that it is difficult for lawyers to understand what the legislation means, that is almost inevitably because the legislation has been badly drafted or has failed to take into account what might happen in future, with the result that the legislation is uncertain and ambiguous and the courts have not solved the problem by giving a ruling on what it actually means. In those circumstances, I believe that solving the uncertainty or ambiguity is in practice really making new law, because what you are doing is converting something that has two possible meanings into something that has only one of those meanings. This provision has nothing to do with deregulation; it is simply making the case for better drafting, and so should not be in this Bill. It is entirely different from the kind of deregulation that is clearly intended to be here. A considerable burden rests on the Government to establish a justification for this provision in the Bill. I beg to move.