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By the editor, Sep 4 2017 12:05PM

Payments made by the Criminal Injuries Compensation Authority have been in the news recently, particularly because of a payment made to Jemma Beale for what turned out to be false claims of rape and other sexual offences, for which she has subsequently been convicted. (An excellent analysis of that case can be found here: http://barristerblogger.com/2017/08/30/ian-watkins-jemma-beale-cases-make-us-uncomfortable-justice-system/#more-2303.)


This blog considers a number of features of the Criminal Injuries Compensation Scheme, which the CICA operates, that may strike those who are unfamiliar with it as surprising and perhaps disturbing. The full scheme can be accessed here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/243480/9780108512117.pdf.


There's already been comment on what many would agree to be a low sum for a "standard" rape, which was awarded to Ms Beale, £11,000. If you take a look at Annex E to the Scheme, there is a comprehensive list of the tariffs for each injury, from £1000 for a perforated ear drum up to £250,000 for quadraplegia. (Interestingly, death comes at the lower end of the scale. Payments to bereaved relatives are fairly token.) The full calculation may need to take account of multiplier tables and other factors. The maximum anyone can get is £500,000.


These assessments of the financial value to be attached to different injuries will inevitably strike the observer as being inadequate and unbalanced to some degree. One obvious criticism to make is that all the sums look too low. The response of the Government here (the CICA is an agency of the Ministry of Justice, and the Scheme is the responsibility of the MoJ) would be that at a time of intense pressure on public funds, there isn't scope for increasing amounts across the board. People are likely to differ as to what sums look relatively too high or too low. This writer is slightly surprised at what appear to be relatively low sums for sexual and mental injuries compared to the others, but it is possible to see arguments the other way..


It is actually two other aspects of the Scheme that are more worrying. The first aspect concerns the CICA's powers to withhold or reduce awards. The second aspect concerns what constitutes a "criminal injury" for the purposes of the Scheme.


Powers to reduce or withdraw compensation otherwise payable


There is the following provision in paragraph 25 of the Scheme: "Annex D sets out the circumstances in which an award under this Scheme will be withheld or reduced because the applicant to whom an award would otherwise be made has unspent convictions."


So the effect of this is that those who themselves have been convicted of an offence are liable to lose all or some of the compensation they'd otherwise be entitled to (unless the conviction is "spent"). Note that's it's irrelevant whether the earlier conviction has any connection with the crime that led to the injury. It's not limited to convictions resulting in imprisonment, or violent crimes. The rationale presumably is that those who've caused harm through criminal activity should not be compensated - or not to the same degree as others - when they themselves suffer harm.


But this does in effect impose a double punishmemt on those convicted. Their original sentence determined the full extent to which they should be punished. It seems unfair and disproportionate to punish someone again, particularly when it results from an injury, for which they may be entirely blameless. Also, is it a sensible social policy? Imagine if someone has been convicted, and has seved their sentence, and is trying to get their life in order, and then gets attacked and permanently disabled, or raped. Why shouldn't they get as fully compensated for that injury as anyone else in order to help them get their life back on track? Arguably the value to society of that compensation is at least as high as that given to any other person.


The suspicion here is that, whatever the official rationale, the real reason for this provision is to limit the potential for tabloid stories about criminals getting payouts from the taxpayer.


But at least it's possible to see the theoretical basis for this provision. Other provisions are more opaque.


In paragraph 25: “An award may be withheld or reduced where the conduct of the applicant before, during or after the incident giving rise to the criminal injury makes it inappropriate to make an award or a full award.”


It's possible to see here that if, for example, the applicant was a person who was involved in a fight, and provoked the assailant, or struck a few blows himself, there may be some contributory blame, and it may be fair to reduce any compensation. But the provision is worded incredibly widely. It leaves it entirely up to the CICA to determine what type and level of "conduct" might make it "inappropriate" to make a full award. For example, if one of these officials disapproves of women getting drunk. mignt he decide to withdraw an award to a date rape victim? And how long "after" the incident might such conduct be relevant? Could this concern conduct that has nothing to do with the crime, concerning assessments of a person's general character?


Such a provision encourages officials to look beyond what a court has determined at trial, and make their own value judgements about the suitability of an applicant in determining whether they deserve compensation.


What constitutes a "criminal injury" under the Scheme?


The second worrying aspect of the Scheme concerns how it defines a "criminal injury" in the first place. This is simultaneously narrower and wider than might be expected.


It's narrower because some injuries - however severe - will not be compensated because the crimes will not be classified as a "crime of violence", and so are excluded from the Scheme (see paragraph 4 and Annex B). "Crime of violence" is a slight misnomer, because violence isn't a prerequisite, although the description does gives a flavour of what is included (as well as offences causing physical violence, sex offences are included, as are offences including threats of violence). Crimes such as fraud will be excluded, whatever mental suffering might have resulted. In addition, a crime "will not constitute a crime of violence unless it is done either intentionally or recklessly". So if the prosecution is only able to prove that a crime was committed negligently, for example, compensation probably wouldn't be payable, however serious the injury..


It's also wider in scope for two reasons: firstly, no conviction needs to have occurred, and secondly, conduct that is not actually capable of being prosecuted as a crime is also included.


Paragraph 10 is unequivocal on the first point: “A person may be eligible for an award under this Scheme whether or not the incident giving rise to the criminal injury to which their application relates has resulted in the conviction of an assailant…”


So this means that CICA officials can decide that a crime has been committed in the absence of any determination by a court, and compensate accordingly. There are of course many reasons why a conviction does not occur after someone has suffered, or says they have suffered, harm. It may be lack of reliable evidence, for example. Perhaps the CPS decides not to prosecute, or perhaps a trial collapses for some reason. There's obviously a very careful process in place to test this. But under the Scheme, all that can be bypassed, for the purposes of determining compensation.


On the second point, under Annex B paragraph 3:


"In exceptional cases, an act may be treated as a crime of violence where the assailant: ... (b) is a child below the age of criminal responsibility who in fact understood the consequences of their actions."


So the CICA can determine for themselves that an act that's incapable of being a crime in law - because the child concerned is too young to commit a criminal act - is nevertheless a crime for the purposes of the Scheme. Under an earlier version of this Scheme, this resulted in one case in the CICA giving compensation regarding an injury allegedly inflicted by a three year old child. Only "allegedly", of course, because this was never tested at a criminal trial, because three year olds can't be prosecuted. It was the CICA officials who made that finding. And note they would have had to be satisfied that the three year old had acted "recklessly or intentionally".


Of course opinions differ about the correct minimum age of criminal responsibility. But a line has to be drawn somewhere - for criminal trials, anyway. For the CICA, it's up to them, to determine on a case-by-case basis.


This brings us to what may be the most troubling aspect of all this. Under Annex B paragraph 2 (d), a "crime of violence" for the purposes of the Scheme includes "a sexual assault to which a person did not in fact consent".


The words "in fact" are important here. They're added for a reason. They mean that it may be insufficient that a criminal conviction for rape or some other sexual assault has occurred. If the CICA believe that the victim (or alleged victim) "in fact" consented, even if for example a jury took a different view, they're entitled to refuse to pay compensation. Why has this provision been added? The Ministry of Justice clearly believes that despite the law on what constitutes consent, there are some cases where the alleged victims do "in fact" consent, even if "in law" they do not or cannot. What sort of cases are those? Where the victim was below the age of consent? (Paedophiles often complain that their young victims were really gagging for it. Does the Government think they have a point?) But the age limit is there for a reason, surely? Does the Government believe that the law is too lenient to victims of sexual abuse?


Why should Government officials be given all these powers - and indeed encouragement - to base decisions on compensation on matters of personal judgement rather than in accordance with the carefully constructed rules governing the criminal law?


Final thoughts


The Scheme has been approved by Parliament. So at least it's been through a democratic process, and could be changed again if necessary? Well, yes and no. It's a piece of secondary legislation, so it got minimal scrutiny, and with such legislation, Parliament only gets the option to approve or reject the whole thing, rather than suggest amendments. It's doubtful many MPs gave it much thought, and just rubber-stamped it. It'd be up to the Government to decide if it wanted to introduce a new Scheme. Even if it was persuaded of the merits of any change, that may not be high on its list of priorties at the moment.



By the editor, Jul 22 2017 05:01PM

Just before the EU referendum, one of this writer’s neighbours said he’d be voting Leave because he thought there could be a good deal “if we get the right leadership”. This qualification neatly captures a key issue at the time and foretold a key element in the current state of play. No one – whether Remainer or Leaver – thinks we’ve got the right leadership at the moment. No one could have foreseen precisely the rudderless situation we find ourselves in, but it wasn’t that hard to envisage that all would not be plain sailing.


As a blog here before the referendum set out – http://www.inkspring.co.uk/blog/4590596332/A-Dog's-Brexit/10304973 – a responsible decision to vote Leave should have taken into account the range of possibilities that such a vote might trigger, and considered how probable they were. Part of this assessment should have factored in the chances of the UK running into difficulties during negotiations over the terms of exit, and the difficulties of resolving different views as to what exiting should entail. To do this in a very informed and detailed way is of course difficult for the average voter who (like this writer) has limited time and knowledge. (That is one reason why the referendum should never have been called.) But it would not be beyond most people’s capabilities to work out that the chances of significant damage from leaving are considerable, given the range of different possible outcomes. A vote to leave was only justifiable if there was a high chance of an outcome that conferred considerable benefits.


To be fair, there are respectable arguments that such benefits might result. The free trade Brexiteers (Dan Hannan, Douglas Carswell and so on) have argued with some force that the UK may well expect to do increasing amounts of business outside the EU, and the EU could be an impediment to free trade with those countries, and therefore a drag on the UK's future prosperity. There are plenty of other valid objections to membership of the EU, including the problem of democratic accountability, and a range of wrongheaded policies, from big noticeable ones like agricultural subsidies to a plethora of minor ones, which can slip under the wire, like attacking vaping. To all of these arguments, there are good counter-arguments. But regardless of which arguments are stronger, a free trade Brexit is only one option. It has very little in common with its uncomfortable bedfellow in the Vote Leave campaign, the anti-immigration vision pushed by UKIP. One outcome was all about breaking down barriers, and the other was all about putting more of them up. And neither had much in common with a hard left Brexit, freeing the UK from the shackles of a capitalist club so that we could ditch free trade altogether and get back to nationalising industries. And none of those three had anything in common with a Norweigan soft Brexit either.


A hard or clean Brexit now looks increasingly unlikely. The proponents of any of those options are in a minority among the electorate, in Parliament, and anywhere else with influence. Before the last general election, the free trading Brexiteers had a chance because they had sufficient power within the Conservative Party. Now, with the Government having lost its majority, and with signs that the electorate is less keen on Brexit than a year ago, the Remainers and the Soft-Brexiters are more vocal and have more influence. The deal between the Conservatives and the DUP is significant, because the DUP wants both a hard Brexit and a soft border with the Republic of Ireland. Achieving both is impossible, and it is most likely that the soft border will be preferred. The tabloid press – which had cowed many Conservatives before the election – has now, after its failure to secure Theresa May’s patriotic landslide, lost a lot of its pro-Brexit swagger. Business (the Conservative Party’s paymaster) is pushing the Government towards a softer exit.


A transitional phase, after the exit and before a new trading agreement, seems to have been accepted by all Brexiteer ministers. They had worried that this would be a slippery slope towards a soft Brexit or an eventual re-entry. And they were right to worry. As another blog here – http://www.inkspring.co.uk/blog/4590596332/Correxit-please/10792802 – set out, there is a real chance that a period of partial engagement with the EU will eventually develop into a form of associate membership, if that is what both the UK and the rest of the EU decide they want. Quite clearly some of those who voted Leave would regard this as a democratic betrayal, and they would have a point. (This is yet another reason why the referendum was such a bad idea: it asked far too simple a question, at one particular point in time, about a massively complex issue, and risks poisoning democracy by failing to deliver what it promised to resolve.) But it may well be that if this comes to pass, the majority of the electorate at that time would prefer such an outcome to any of the others available, having been exposed to some of the consequences of partial disengagement and alerted to the potential consequences of a fuller disengagement. There would still be a very good argument that democracy hadn’t been subverted, since the EU referendum question only asked whether the UK should leave the EU, not the terms on which it should leave (and by explicitly leaving the result as advisory rather than binding on Parliament, implicitly left it to Parliament to determine those terms). The difficulty would be that whatever the true constitutional position, many Leavers would feel that they'd been done over. But that may well be the case whatever the eventual outcome, given that it was never clear what a vote to leave actually entailed, so there are bound to be disappointed Leavers anyway. Resentment at perceived democratic failure may simply be something we have to live with.


In the 1970s, the UK was called the Sick Man of Europe. We’re not that sick now, at least not yet. Our economy has been doing okay, although it seems to be slowing, comparatively, which may well be caused, in part at least, by the prospect of Brexit. (Perhaps what has stopped a more severe economic slowdown since the EU referendum is a hope among businesses that the sort of semi-disengagement referred to above will be found once the politicians are forced to choose it.) But it is clear that the UK is not a happy place politically. Even the Brexiteers have lost their optimism, and are sliding into internecine conflict. As we now stumble towards a compromise that appears to suit neither Leavers nor Remainers, other EU countries regard us with pity (if they’re charitable) or amusement (if they’re less so) rather than anger. We picked a fight with Europe, and now we’re fighting with ourselves. It seems unnecessary now for the EU to punish us for leaving, so as to deter others, because they can leave it to us to do the job for them. There are unlikely to be many countries eyeing us enviously at the moment.


The blame game among Leavers is already beginning, and we haven’t even left yet. They will say that it’s not their fault that we ended up with the wrong sort of Leave. It wasn’t the Leave they voted for. There just wasn't the leadership. How could we have known it would be messed up so badly?


Well they could have thought about that at the time. There was always a good chance of a bad outcome. In fact, the Leavers have got the leadership they deserved. The rest of us will suffer alongside them, and we can just hope that something serviceable can be cobbled together from the ruins.


By the editor, Jun 17 2017 11:46AM

Another poll, another surprise result, more widespread disappointment, cynicism and uncertainty. Turnout actually increased at this election, suggesting that it might have generated a bit more interest than usual. But still: more than 3 out every 10 eligble voters didn't vote. Those who do vote generally disapprove of non-voting. But the non-voters might say, what's the point? Elections don't really change anything, politicians don't keep their promises, and anyway, my vote wouldn't make any difference.


Perhaps we shouldn't be too keen to dismiss these views. As has been pointed out before, the chances of an individual vote affecting the outcome of an election are so close to zero as makes no difference. This general election was in fact notable for the number of very close results, one of which was decided by only 2 votes. Notable, though, because so rare. And even if one person more, or one person less, had decided to vote in that North East Fife constituency, it wouldn't have affected the result (assuming the votes were counted correctly, of course). Contests where one vote might affect the result might happen once in a century. And even then - even in an election as close as this one - the fate of one constituency is extremely unlikely to affect who ends up in Government.


And so the theory goes - the rational person doesn't vote at all. It simply isn't worth even the relatively small expense of effort involved in going to the polling station, because there is absolutely no chance in real terms that it will make any difference at all.


But it is more complicated than that.  If no one voted at all, there would be anarchy or something similarly disastrous, and the individual non-voter would suffer along with everyone else.  For the “rational person”, it has been said, it is better that others vote, but that you as an individual don’t bother.  But then there is a risk that by not voting, others follow your example. Game theorists have had fun working through the permutations.  It has been suggested that the best outcome for the rational individual would be for others to believe she is voting, thus helping encouraging others to vote, but not actually to cast a vote herself. 

 

But there are difficulties even with that.  What if the person is asked a direct question?  And follow-up questions?  “Are you going to vote?” Yes. “How do you manage to fit that into your busy life?” Oh, I’ll drop in to the polling station before catching my train.  “I thought you usually caught the 6.58?” Yes, that’s true. I’ll have to get a later train that day.  “Oh, the 7.18?  I’ll see you on it then!”  Well, I might not manage to get that train, actually, it might be the one after.  “Oh, so you’ll see my wife, then, she gets the 7.40…”  And so on.  It’s quite possible that it would cost less effort to vote than it would concocting elaborate lies to cover one’s tracks in not voting.  And there is less social risk in actually voting than in pretending to vote and potentially being found out as a manipulative liar.

 

This does also beg the question who a “rational person” is in such circumstances.  It seems to be assumed in academic circles that a rational person is one who is entirely selfish.  This is a dubious assumption not only morally, but also linguistically and logically.  There seems no reason why a “rational” person shouldn’t follow a course of reasoning that benefits others instead of, or as well as, herself.  In any event, voting is an instance where the two interests – the individual’s, and the wider public’s – are so closely intertwined that it is difficult to disentangle them.  From one perspective, voting could be seen as entirely selfish: a cost-benefit analysis that on balance works in the individual’s favour, even if the actual effect of the individual vote is worthless.  From another perspective, voting is a civic duty and a partly altruistic act, which is rational because it is rational for everybody, rather than limited to the cost or benefit to the individual.  In reality, most people are likely to feel it’s something of a mixture, to the extent that they would feel inclined to a view at all.

 

And however you explain the motives of the rational voter, can “tactical voting” be defended as rational?  Given that an individual vote effectively never counts, is it not only unprincipled, but also pointless?  There is a case for arguing otherwise.  If the act of behaving as though you’re going to vote at all has a beneficial effect, because of its wider influence, then behaving as though you’re going to vote for a particular party may have an influencing effect as well.  (Of course, you could still actually vote for your real preferred candidate – like the Labour supporter who persuades others to vote Lib Dem to stop the Tories, and casts her own vote for the hopeless Labour candidate – is that more or less principled?)  In a particular constituency, this behaviour may help stop a particular party’s candidate from being elected.  However, it still seems most unlikely in practice that the average individual on her own would have sufficient influence to persuade hundreds or thousands of people to vote in a particular way so as to alter the result.  And there is a another potential downside too: a spreading of cynicism and distrust, whether within that constituency or more generally.  For example, if a party or its supporters became associated with promoting tactical voting, the party may lose support overall, from those who prefer to view voting as a more honest transaction.  So: tactical voting is only very rarely good tactics, and even then it may well be a poor strategy.

 

Whether taking a tactical approach or not, deciding whom to vote for can tax the most rational of individuals, selfish or otherwise, particularly given the choices on offer at the last election.  Some may be less inclined to make a choice on policies or even on individuals, and more inclined to send a message or make a gesture, along such lines as not wanting to be fooled, fobbed off, ignored, or taken for granted.  Given the uncertain basis for voting at all, it's easier to understand such reactions, even if they appear to go against an individual's or a country's best interests.  That effect may be magnified when a poll is foisted on a tired electorate by a prime minister who is determined only to bolster his or her authority, as has now happened twice in the space of a year.  On each occasion the prime minister concerned has been rebuffed by the voters.  No doubt on each occasion the prime minister has been surprised by the result, wondering why so many people have voted so apparently irrationally. 

 

The truth is we don’t fully understand our own motives for voting, let alone the motives of others, but emotions and instincts are likely to play as much of a role as reason.  It shouldn’t surprise us if the results are sometimes unexpected.


By the editor, Apr 15 2017 01:33PM

We've come to accept regular lecturing by the Government on our health, rather as we now expect our newspapers to produce a steady crop of simplified and distorted medical science stories. Consequently, our visits to our GPs involve increasing questions about lifestyle choices, and such questions are liable to crop up in other, sometimes surprising, contexts, which may for example affect our ability to conduct our financial affairs as we wish. Woe betide us if our answers are significantly out of line with whaterver the state recommends - or worse, that we refuse to answer at all. And who knows what is done with the records of whatever we say? Yet it's rare now to hear complaints about "the nanny state": perhaps people have given up fighting it, or liberalism is so discredited now it's not considered worth fighting against at all.


A report last year on recommended maximum levels of alcohol did cause something of a stir because it lowered the limit for men to 14 units a week. As a few people in the media noted, this means that for those who enjoy a drink the message was essentially to become a teetotaller. And as a result, it's now become that much harder to keep a straight face when lying about our intake to the medical profession and other powers-that-be. Meanwhile, what if any advice do we take from such recommendations, and to what extent should we feel obliged to follow them?


It's quite often stated, alongiside such reports, that the "cost to the NHS" or similar is £X billions, hence justifying state action, and morally requiring us to adjust our lifestyles so as not to be a burden on others. But it's worth here bearing in mind the words of Humphrey Appleby in Yes Prime Minister, when given statistics of deaths from smoking and the cost to the NHS: "We have gone into that. It's been shown that, if those extra 100,000 people a year had lived to a ripe old age, they would have cost us even more in pensions and social security than they did in medical treatment." Were these figures accurate then, and are they accurate now? We might now add the additional, and burgeoning, cost of social care for the elderly. Meanwhile, smoking and other vices are heavily taxed. There is a strong case for suspecting Humphrey was right then, and would be right now. So where is the evidence and analysis to prove that there is in fact a net social cost of smoking, or any of the other demonised habits? Arguing the toss on this may seem a rather cynical and heartless exercise, but people and governments shouldn't get away with making accusations along the lines that one group of people are, by their lifestyle choices, costing everyone else a huge amount of money, if in fact this isn't true, or can't be proved either way.


But back to the report on alcohol. To be fair, this was measured, and appeared to be carefully produced and evidence-based. It made it clear that the recommended maximum limit was based on levels of risk, rather than some sort of cliff-edge of certainty, and acknowledged that risks to individuals would vary hugely depending on various other factors. Nevertheless, it's necessary to delve into the background material on which the report was based to get a proper understanding of what the recommended limit was based on. And it then becomes clear that there are some assumptions and conclusions that start to look questionable. The background report can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/545739/GDG_report-Jan2016.pdf.


The research included risk factors associated with diseases that are wholly attributable to alcohol, as would be expected - alcoholic liver disease, for example. But it also includes the risks of a much larger range of diseases, such as high blood pressure and a number of cancers, to which, it states, "it is clear that regular drinking contributes but for which conditions it is not possible to prove the role of alcohol in any individual case". Alarm bells ought to start ringing at this point: something is apparently "clear" and yet it's not possible to "prove" in any individual case. It sounds rather as though a link has been made in each case, based on theories and observations, without any defintive proof. We aren't told what evidence this is based on, but it is apparent that other medical warnings about the dangers of alcohol are based on connections to other risk factors, such as obesity. The idea being that it's likely that a person who drinks a lot is also (for example) overweight, and the latter condition causes a number of diseases. But of course some heavy drinkers aren't overweight, and provided they stay that way, that category of risk factors falls away.


Furthermore, the list of risks in the report includes the risk of accidents, whether direct accidental alcohol poisoning, or falls, car accidents, or other physical injuries. It's doubtful that many of those considering the recommended limit would have been aware of this. The person quietly sipping a few glasses wine or beer at home in the evening is extremely unlikely to poison themselves or walk into the path of a car or get into a fight. They'd be wise to take extra care walking up the stairs to bed, but that's hardly the sort of risk that a Government report needs to alert them to.


With all that in mind, we get to the figures. It's true that, if you do accept the analysis of the risks considered above, the report's conclusions show a marked increased risk of of drink-related deaths for those drinking significantly in excess of 14 units a week. Whereas the risk of drinking 14 units (spread over 5 days) is a 1% increased risk of mortality, the risk of drinking 49 units (spread over 5 days) is nearly 15%. But it's also important to put this in perspective. Although the report refers repeatedly and rather alarmingly to the "lifetime risk of death" from various causes, it is worth reminding ourselves of the rather obvious point that the risk of death occurring at some point in our lifetimes is 100%. This isn't a risk we can mitigate. Something will get us all in the end, whether drink-related or not. By "increased risk of mortality" we assume the report must mean an increased risk that the thing that kills us is attributable, wholly or partly, to alcohol. This may happen early in life, or later. Most of the diseases referred to in the report are likely to occur later in life. There is no analysis of how much longer you are likely to live if you take up the semi-teetotal approach. Nor is the report saying anything as dramatic as that it is 15 times more likely that you'll die early if you drink 49 units rather than 14 units a week.


So what this all means is that if you drink about 50 units a week - over 3 times the recommended limit - it's estimated there is a 15% chance that what happens to be the cause of your death will be linked in some way to alcohol. That includes the risk of accidents - most of which will be avoidable for sensible grown-ups - and includes a number of diseases that have been linked to alcohol, but for which there is no proof, and which may very well have other causes. The figures look precise, but hide a certain amount of guesswork. All that can be said definitively is that the more you drink, the more likely it is that your death will be drink-related, which is no more than common sense.


There's no analysis of what risks any displacement activity may have, whether this might be some other drug, literal or metaphorical, that helps us relax, or anything else. For a lot of people this might mean spending more time slumped in front of the TV, watching rubbish. There may be no evidence yet that this speeds up the onset of dementia, but it can't be long coming.


Most of us who like a drink know that it's capable of damaging us. Our bodies tend to warn us when we're having too much. We accept that there are risks involved in any event. It's helpful to know what specific diseases have been proved to be caused by alcohol, and what the risks and consequences are of getting them. But the weekly recommended maximum is a bit of nonsense. It's the sort of thing that Governments feel they have to do. And once this limit is out there, it becomes one of those myriad pointless farcical things that regulates our lives.



By the editor, Mar 23 2017 05:13PM

It was recently announced that George Osborne, MP and former Chancellor, had been appointed as the new editor of the Evening Standard newspaper. There was much media discussion about potential conflicts of interest and whether he’d have time to represent his constituency adequately. One issue that didn’t seem to cause much concern was whether taking on such a role would have a detrimental impact on his scrutiny of the draft legislation that passes through Parliament. As a member of the legislature, one might have thought that was worth consideration.


But in reality no one expects MPs to do this on a regular basis. A couple of years ago, in a media sting operation, the former Foreign Secretary Malcolm Rifkind, still a sitting MP, described himself as “self-employed”, and eager to take on whatever extra work he could to fill his time. The idea that Mr Rifkind, or other politicians, might spend some of this “spare” time considering the laws that regulate our lives seems fanciful. Governments get the legislation drafted; they have majorities in the Commons, so can rely on getting most of it passed; the Lords do no more than occasionally modify and delay it. And there are committees of members of both Houses that go through the drafts of primary legislation (statutes or "Acts") in more detail. Some might say such scrutiny is sufficient.


But again, in reality, it isn’t. Committees skim over most of the draft clauses, focussing only on those that are of particular party political concern, or that occasionally touch on personal or constituency interests of individual members. Secondary legislation (orders, regulations, rules and so on) – which has overtaken primary legislation in terms of volume and impact on people’s lives – barely gets considered at all, and is simply waved through untouched 99% of the time.


It is one of the great legal fictions that underlying legislation is an expression of the will of Parliament. It’s a necessary fiction, which is, admittedly, partly grounded in fact. But its distance from reality has grown as Parliament has weakened. The idea that parliamentarians have collectively agonised over and selected every mot juste in legislation, some of which might later be the issue of fierce debate in the courts, will be laughable to those who have spent time working in the process of getting legislation enacted.


So if law isn’t really the expression of Parliament, what is it the expression of?


It’s worth here considering how laws tend to get made. This might start with a manifesto promise, or a reaction to a media story. A minister’s Private Office might contact policy officials in the Government Department concerned with a proposed policy line. For example: someone is killed by a person remanded on bail awaiting a murder trial; there is tabloid outrage; the Government decides that bail laws need to be strengthened. The policy officials talk to their lawyers. The lawyers advise that no further measures can be introduced without contravening the European Convention on Human Rights. Private Office consults with No.10 and confirms that the Government isn’t willing at this point to withdraw from the Convention, but something needs to be done anyway, immediately, to deal with the story. So the officials and the lawyers go back to the drawing board. At this point, Special Advisers and the Press Office will probably intervene. It will be decided that even if nothing can be done of substance, it’s important for the Government to be seen to be doing something. So some proposals are worked up on that basis.


Eventually, parliamentary drafters are instructed, to convert these proposals into clauses to be added to a Bill. The Department officials and lawyers consider these clauses till the Bill is ready to be introduced to Parliament. The officials and lawyers draft speaking notes for the Minister. When it comes to attending Parliament, the officials and lawyers will be there, passing notes to the Minister to deal with questions that do arise.


Some Ministers are clever, hard-working, and interested in the subject matter of the Bills that they are responsible for introducing. Some are clueless, and rely almost entirely on their officials. Even among the former, what they say in Parliament is at most a composite of their own views and the views of their officials. Among the latter, all views will be those of their officials, unless they wander off-message, in which case their poor understanding of the drafting (if indeed they’ve read it all) is likely to result in some bizarre statements about what the legislation means.


And yet it is the Minister’s statements in Parliament that a court is likely to turn to when difficulties arise in interpreting legislation, in order to discern Parliament’s intention. Whose views the statements really reflect will depend from case to case. More often than not those who worked on putting the drafting together – the policy officials, their lawyers, the drafter, and any others involved, including the Minister on occasions – will have different views on what the clauses mean. The Ministerial statements are often carefully worded compromises between differing opinions within the Department. What is abundantly clear, though, is that the wording does not reflect a view that has been reached by the collective agreement of members of Parliament.


What makes this worse is that legislation is usually drafted in a rush, and is subject to last-minute changes to meet fluctuating political imperatives. The drafting of legislation is fiendishly difficult, because it fits into a vastly intricate web of existing law with complex rules of its own. It takes some time to settle on the correct wording, even for apparently simple provisions. Last-minute changes get bolted on in a hurry, and that leads to inconsistencies and imprecision, without allowing sufficient time to reach agreement among officials as to what the drafting might actually mean. It is often observed, of a lot of legislation, that it is poorly drafted, and the poor drafter tends to get the blame. But it’s rarely the drafter’s fault. (They are actually among the cleverest people in the country, with minds like Bletchley codebreakers.) The drafting can only be as good as the instructions that precede it. And those instructions are often muddled and hurried.


And on top of that, the political imperatives may not align with the actual content of the legislation, and this can be reflected in the way that the legislation is drafted, and the way it is presented in Parliament. To turn back to our example of the law that was designed to make it look as though the Government is being tough on bail: such a law may end up being framed in a way that glosses over its ineffectiveness, and presented in Parliament as achieving something that it doesn’t. It’s hardly surprising if such laws cause confusion when they fall to be interpreted in real-life situations.


In this way, the whole purpose of introducing legislation can be undermined, defeated, or worse. An example of this was a law designed to stop men who had killed their partners escaping murder convictions using the defence that they were provoked by their partners’ sexual infidelity. Some murder convictions based on the new law were later the subject of appeals, in which the Court of Appeal (R v Clinton and others [2012] EWCA Crim 2) analysed the drafting of the new provisions word by word, applied it to real-life situations, considered the speeches made in Parliament, and ended up scratching its head (“We are required to make sense of this provision...”). But ultimately interpreted the new law as effectively enshrining this defence, rather than abolishing it. “There are aspects of the legislation,” the Court said, “which, to put it with appropriate deference, are likely to produce surprising results.”


George Osborne and Malcolm Rifkind were probably relieved, when their ministerial careers were over, that they no longer had to suffer the drudgery of working through the vast reams of legislation pouring out of their departments, and happy not to be involved in reviewing more of it as humble backbenchers. But when it’s obvious that such parliamentarians are far removed from the process of producing laws, that the legislature is often just rubber-stamping the executive’s work, and that the executive itself doesn’t know what it’s doing, it’s hardly surprising that the laws that govern us don’t make much sense.



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