Laws mount up as the legislature fades away

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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