Last night I heard Lord Rodger of Earlsferry give the first Lord Renton memorial lecture – his subject being “interpreting statutes today” – and an interesting lecture it was, too.
He spoke about the importance of close reading of provisions in the context of a statute as a whole, and told the audience that he thinks counsel in the House of Lords do not pay enough atention to that – preferring to bombard the court with reams of extrinsic material like reports, white papers and so on. Lord Rodger clearly isn’t hostile to that – he said he thinks arguments about whether such material, including Hansard debates under the principles in Pepper v Hart – simply watse time and costs to no good purpose since almost all the material is irrelevant anyway. They might as well look at it, then ignore it, in other words.
He also made a point that seem obvious once someone points it out to you: that the use of extrinsic aids to intepretation has expanded as a result of technology: first, the advent of photocopiers in the 80s, which meant foreign cases, reports etc. could easily be put before a court if found, and then the rise of the internet which means things are very much more easily found, and Hansard more easily searched. Funny, he said, that this has resulted in a greater use of external material by judges just as the drafting of bills has become more professional and precise. In theory, the old-fashioned approach of focusing on textual analysis to the exclusion of anything else – and approach Lord Rodger showed had been and could be taken to ludicrous extremes – would be more appropriate now that it had been when it held sway. Lord Rodger clearly wishes less time were spent on external guff and more on detailed construction, though.
He also shared some sideways thoughts about legislation – for instance, that no UK statute includes the words roughly or perhaps. Not certainly, either.
Oh Carl, you disappoint me. “Certainly” does crop up in statutes – try the Gambling Act 1985 or the Stamp Act 1891.
What I long for is a statute with the word “lovely” in it. Even “nice” would be, well, nice.
I’ll blame Lord Rodger for disappointing you, Nicholas – unless I misheard him and he was saying it only cropped up occasionally.
There are some regulations (on chocolate products as I recall) with the word “fancy” in. And quite a few regulations on cakes as I recall.
Let us have some quality and not quantity. At the level of the HL – soon to be the SC of the UK – there should be no excuse for poor case preparation.
Is drafting actually better? I recall some statutes standing the test of time: Partnership Act 1890; Sale of Goods Act 1893; Law of Property Act 1925; Courts Act 1971 etc. I am open to correction here but those Acts seem to be models of generally good drafting. We now have masses of poorly drafted legislation which is convoluted in the extreme and is utterly incomprehensible to those required to abide by it.
Peter, I can’t comment on the rest, but there is surely a shedload of litigation on the precise meaning of various parts of LPA 1925.
Duration is not necessarily an indication of good drafting – legislative prospective fatigue at the scale of the task can also be a factor.
That said, virtually every property or housing related Act in the last 15 years (or more) has been a drafting horlicks to a greater or lesser extent.
I’m ashamed of the general ignorance of statue law exhibited by my fellow bloggers (Peter Hargreaves excepted), “certainly” certainly does appear in public general acts of parliament – as recently as the Gambling Act 2005, where it occurs twice (in sections 198 and 201.
As for “roughly” – what is Lord Roger’s point? It occurs in no current act of parliament as far as I can see, but it can be found in numerous items of secondary legislation which equally have to be interpreted by the courts.
For example Schedule 7 to the Merchant Shipping (Life-Saving Appliances for Passenger Ships of Classes III to VI(A)) Regulations 1992 (SI 1992/2359) helpfully informs me that “water penetration of between 10 and 12 cubic centimetres per second per square centimetre at a pressure of 550Pa” is “roughly equivalent to a speed through water of 2 knots” and I am fortified by the knowledge.
“perhaps” occurs in the Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI 2004/1482).
“lovely” I am afraid occurs only 3 times in any SI’s I can find but only as “Lovely” because of the location of the relevant NHS Trust at District General Hospital, Lovely Lane, Warrington, Cheshire WA5 1QG.
“fancy” is of course used in numerous regulations, Head of Legal may have been thinking of the charming:
“fancy confectionery product” means any confectionery product in the form of a figure, animal, cigarette or egg or in any other fancy form;
to be found in the Food Labelling Regulations 1996 (SI 1996/1499).
What the above listing suggests is that even fairly clued up legal bloggers don’t know how to easily search the statue law database for words. Worrying.
Duration has nothing to do with good drafting (good grief what about the Prescription Act 1832. Its not getting any better.
What worries me about Lord Roger’s reported ideas is that (i) legislative drafting has been improving (no) or that (ii) close reading of an act is what the house of lords does (not if Malcolm is anything to go by). The only defence is perhaps that Law Lords do not normally closely read legislation because counsel are rubbish and don’t make them. I don’t think that is an excuse for what will be a supreme court.
The use of debates (a la Pepper v Hart) really does worry me. Pepper v Hart had a clear ratio that works, but its very very narrow. Anyone who has much experience of the way in which bills are passed would realise that very little weight should be put on speeches in Parliament, if any. But that is another rant.
By the way: (for the avoidance of doubt) I do agree with the importance of close reading of a statute (if that is the job to hand – there is of course not always such a thing), I simply disagree with the argumentation as reported which seems to me to be based on an entirely false premise. The fact that the actual use of various words in statutory material is not as one might wish it to be to make the point suggests that facts are not being allowed to get in the way of a good lecture.
This is partly a training issue in my view. Legal education to a great extent persuades one to produce as much extrinsic material as possible, and many mooting competitions reinforce this.
One of the best exercises I ever had was mooting in front of Lord Justice Kennedy (in my Inn) on a question related to standby letters of credit. The legislation and treaty on which the legislation had been based had never been considered by any court anywhere in the world. The entities were entirely new and meant to be a departure from the past. There was nothing *except* for the legislative material to use that could be any real help.
Having said that, its all a matter of context. My view is that quality of House of Lords decisions has been declining. One of the best made in recent years was Uratemp in which the discussions of two of the judges very properly focus on considerable extraneous material and produce a really high quality judgment that is comprehensible to all.
What a strange rant from Francis Davey. Which ignorant bloggers did he have in mind? Head of Legal correctly recalled that “fancy” appears in cake-themed regulations. I correctly stated that “lovely” does not appear in any statute. We can all do the word search as well as Francis Davey. What has got him so worried I am not sure.
My plea for “lovely” had a semi-serious point, which is that lawyers write and draft in language that is strangulated, joyless and free of emotion. Maybe that is how it should be. But Francis Davey brilliantly illustrates that lawyers can be all that and humourless too:
“By the way: (for the avoidance of doubt) I do agree with the importance of close reading of a statute (if that is the job to hand – there is of course not always such a thing), I simply disagree with the argumentation as reported which seems to me to be based on an entirely false premise…”
In case it helps, I was also at Lord Rodger’s lecture. And the reason he said what he said about the legislature’s reluctance to use words like ‘roughly’ and ‘certainly’ was simply to make the point that Parliament needs to be precise, but does not need to waste time being emphatic. I think his point, such as it is, is right even if it can be shown that the words do crop up from time to time.
(Anyway, as far as I can see, the legislation that has been mentioned uses these words in a different way. The ‘certainly’ in the Gambling Act just means ‘if you can be certain that’. And the ‘perhaps’ is not in the body of the regs, but in the plain English document that lenders must show to prospective borrowers.)
I also think Lord Rodger is right that, whatever other failings it may have, modern legislation is generally clearer and easier to read than its ancestors. To pick a provision at random, section 2 of the Energy Act 2008 starts: “(1) No person may carry on an activity within subsection (3) except in accordance with a licence. (2) But subsection (1) is subject to section 3.” Much better (and less strangulated) than your old-fashioned “Subject to section 3…”.
(I’ve heard that solicitors sometimes draft contracts for their clients in plain English, only for their clients to insist that they should be rewritten with heretofores and thereinunders to make them look more official.)
Lord Rodger also made the point that it is far easier to criticise someone else’s drafting than it is to draft something yourself…
@Nicholas: I have a dry sense of humour such that people often miss when I am being entirely flippant. My apologies if that did not come over, although some people have expressed amusement which is some comfort.
The “false premise” was the idea that legislative quality has improved in the last decade or so (rather than whether particular words occur in the legislative output of Parliament). I believe that is clearly wrong. There is some empirical evidence (alas, mostly on the subject of secondary legislation) which backs my view up to some extent.
It would be no surprise if quality had fallen since output (in quantitative terms) has gone up considerably and the infrastructure has not improved dramatically to cope with that increase. The increased use of secondary legislation particularly as an integral part of an acts scheme rather to implement a discrete set of rules (the Employment Act 2002’s intertwining with the dispute resolution regulations being a case in point) works against making the law easier to understand.
I do wonder whether the use of techniques in the software engineering industry for checking code for bugs (of the missing path variety) would not help.
Of course there are still gems that appear now and then and there have been some total dogs in the past, but the *recent* trend (over the last 10-20 years) has not inspired me with confidence.
I am sorry if my (obviously failed) attempt at humour did not get through. To atone I will see if I can find someone to slip the phrase “… must be roughly or certainly either fancy or lovely” in the schedule of some future act. I do not anticipate success.
@Anonymous – on criticism I agree (“everyone’s a critic”). On the Energy Act provision – this is a matter of personal opinion I think. Personally I think the “Subject to…” is far better because you are warned in advance that you are reading something that is not absolute. My computer science friends like it like that (better coding practice) and hate drafting of the “X is unlawful” kind where you have to read another few pages to discover what that means (if anything).
Sadly there’s very little discussion in the literature about this point. In other fields this kind of question gets detailed research and practice is improved.
It therefore interests me greatly that you pick on an example of something I like as something that is bad – I wish I could have this kind of discussion more often.
As it happens though I am worried about readability (in the plain English sense). I’m even more concerned about ambiguity and logical coherence. A simple, classic (but I accept old) example of this is Ground 8 in Schedule 2 to the Housing Act 1988 – what of half yearly tenancies? The drafter just didn’t think about them.
I recently was involved in a project to try to communicate aspects of the Housing Act 2004 to non-lawyers (surveyors in the most part). The question “what is an HMO” proved almost impossible because (as at least one tribunal has said) the legislative scheme is almost impossible to comprehend.
@Head of legal: apologies for descending on your blog – blame Nearly Legal for pointing me in its direction. Its something to read while convalescing.
There’s some interesting stuff about drafting techniques here:
http://www.clarity-international.net/journals/55.pdf
And for a bit of “subject to” hell, try reg.2 of SI 1996/1436.