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.

By the editor, Aug 7 2016 08:39AM

Eleven years ago today one of the finest ever games of cricket reached its climax. England beat Australia by just 2 runs when the last wicket was taken, the Australian Michael Kasprowicz caught behind off the bowling of Steve Harmison. At least, he was given out. Replays have showed that the ball glanced off Kasprowicz's right glove while it wasn't in contact with the bat. So, in fact, according to the laws of the game, it was not out: the umpire got it wrong. Had the technology of the Decision Review System been in place, it's often been said, the umpire's decision would have been overuled. Most likely, then, Australia would have scored the extra 3 runs needed for victory, and they would have gone 2-0 up in the series. If they'd been 2-0 up, it's very likely they would have gone on to win the 2005 Ashes.

The last forecast is probably accurate. But the first one is completely wrong, and worth putting right, as it crops up so often; not only worth it for those who follow cricket, but also as a good illustration of similar counterfactual fallacies.

As "Superforecasting" by Philip Tetlock and Dan Gardner put it: "History is a virtually infinite array of possibilities." Imagining how the past might have developed differently by altering one component of it does not lead to one simple, accurate alternative version of how the past would have panned out. Any one tiny change might have had billions of different immediate consequences, and then billions of different chain reactions resulting from those consequences. None of these consequences can be reverse-predicted with the slightest degree of confidence. The butterfly flapping its wings might have a part to play in affecting major weather events, or it might not, and it might have all sorts of other consequences instead. History could also be described as a virtually infinite array of apparently highly improbable events, whether the creation of life on earth, or the chances of your parents getting together and conceiving you. The billions of other potential events would have been been highly improbable too, but they just didn't happen. This, incidentally, being one of the main flaws of the Intelligent Design argument.

But back to cricket. Had DRS been in place for the 2005 Ashes, we can only guess at what the consequences would have been. The one thing we can say with some certainty is that the games would have been entirely different: different balls would have been been bowled, and different consequences would have flowed from them. And despite not knowing the exact sequenece of events, we can make some educated guesses at how the shape of the games might have been altered. For example, DRS has tended to increase the number of leg-before-wicket decisions given, because whereas before DRS umpires tended to give batsmen considerable benefit of doubt, the digital tracking system seems to have shown that more balls bowled are likely to be on their way to hit the stumps than was thought previously. This has particularly benefited spin bowlers.

Another educated guess we can make is that the genuinely freak incidents that happened in the real past would be very unlikely to have happened in our alternative past. Given that history would have been knocked off course, the chances of exactly the same incident happening are extremely small. Other freak incidents might have happened instead, in fact are quite likely to have happened, statisically. But not those that did.

So it was very unlikely that the Australian fast bowler Glenn McGrath would have suffered the freak trip on a rugby ball in training that ruled him out of the Edgbaston Test. (Obviously this trip in itself had nothing to do with DRS: but that is irrelevant.) And so his replacement, Michael Kasprowicz, would not have been playing. And quite apart from that, the chances of that particular ball being bowled and catching his glove in that way, once history has been interfered with, are so vanishingly small that they can be considered in effect impossible.

So DRS wouldn't have saved Kasprowicz, who probably wouldn't have been playing, let alone playing that particular shot at that particular time. But McGrath probably would have been playing, and probably would have been in better form throughout the rest of the Ashes. Since he was one of the best Australian fast bowlers ever, that is likely to have been significant. Also significant would have been the particular advantage DRS would have given to spin bowlers, and Australia's Shane Warne was one of the two best spin bowlers of all time; with all due respect to Ashley Giles, significantly better than England's spin bowler in the same Test series.

DRS may well have won Australia the 2005 Ashes, but this would have had nothing to do with Michael Kasprowicz, and everything to do with Glenn McGrath and Shane Warne.

By the editor, Jun 28 2016 06:51PM

A vast act of democratic GBH has just been inflicted by 17 million UK voters. Rather as though Mr Hyde had repeatedly stabbed Dr Jekyll, both will suffer the long-term injuries. Quite how bad the damage will be is of course hard to predict. But the damage has certainly begun: the gyrations in the currency and stock markets will cause losses that won’t be recovered; investment is already being withdrawn, which means job losses; and that crucial element in the economy, confidence, has fallen. One particularly worrying element is the damage to the UK financial servicesindustry, which benefits strongly from the single market, and from the UK arguing its corner within the EU. A lot of people won’t shed tears for the bankers who might suffer as result, but the contribution to the UK’s economy is massive (see It’s not as if other parts of the economy would simply fill the gap. Tax receipts would take a huge hit. So that’s less money for the NHS and everything else.

This was too important and complex a decision to be left to voters. One of the disadvantages of a referendum such as this is that it is supposed to answer a question in perpetuity, but depends very much on the particular point in time that the question is asked. It’s highly likely that if, after the damage to the economy becomes apparent, the referendum was run again, the answer would be Remain. Hence some calls for a second referendum. But surely one of the lessons of this debacle is that referendums are generally a bad idea.

Good democracy means limited democracy. It entails allowing citizens a say in who governs and on what basis, and ensuring they can remove those they don’t like, but leaving the actual decision-making to the politicians, the officials, and the much-maligned experts. This referendum was a particularly bad form of democracy because the option to vote Leave was so open-ended. The Leave campaigners were divided among themselves over what they wanted (especially on the options of a) free market and free movement, b) neither, c) pie-in-the-sky best of both worlds), and even then, no coherent plans from any of the rival factions emerged. Then of course there was the tricky matter of getting any such plan agreed by the EU. So while the result showed 52% in favour of one particular option, this by no means translates into majority support for whatever emerges at the end of the long tunnel of negotiations.

One of the questions now is how to limit the damage. Despite the daftness of the referendum, the fact is that Parliament decided to hold it, and voters (a significant majority of those eligible) have spoken. Somewhat ironically, although Parliament is sovereign, and could in theory just ignore the result, in reality it has hamstrung itself by its abdication of responsibility. It has to take steps towards exit, or at least not block the way, and at least until there is another vote that gives a clear steer otherwise. If there is such a vote, it is better coming via a general election, which gives the resulting Government flexibility to determine the exact course.

For the present, it looks likely that a route towards exit must be chosen and followed. But it may be possible at some stage to identify something very close to Remain that could significantly limit the damage that might otherwise be caused. “Associate membership” is already being canvassed as a possibility. It may also be the case that in future years, by the time any deal is finalised, the nature of the EU could have changed significantly, perhaps in recognition of the growth of euroscepticism across the continent, and changes considered necessary by, for example, the influx of refugees, additional member states, or reform of the currency union. The EU has found a way to thwart referendums on treaty changes in the past. “Membership” of the EU could be redefined. Or perhaps the EU could be rebranded itself, and we won’t have voted to leave the new institution. This of course would enrage many Leavers, who’d regard any such move as a fudge. Which may well be right, but then the referendum result is itself an unreliable basis for any change, for the reasons given above, and is likely to be regarded as such by a majority of voters by that point, given that many Leavers will have changed their minds, and many of the older voters who helped swing the result will no longer be with us. In several years, the vagueness about what a Leave vote actually meant would assist those seeking to secure something as close to Remain as possible.

Democracy, having served us so badly over the referendum, might come to our rescue in time. Those politicians who form the Governments of the next few years are unlikely to push for a deal that is significantly more economically damaging than the other options, because their chances of re-election are weakened. So they’re likely to go for something close to Remain. It is possible, of course, that other pressures might push in another direction, such as if the spike in unemployment increases hostility to immigration. But at least those likely to be in office aren’t the immigrant-bashers of UKIP. It may be possible that some window-dressing on free movement could be conjured up keep the xenophobes at bay. All in all, there’s some cause for relative optimism that the “Dog’s Brexit” can be avoided.

None of that will undo the damage of the next few years. But at least there are some realistic options for the future that aren’t disastrous.

By the editor, Feb 12 2016 12:08PM

The UK abolished the death penalty for murder several decades ago, and abolished it for all offences in 1998. But it's perhaps not widely known that the judges of our Supreme Court, sitting as the “Privy Council”, operate as the final court of appeal for Commonwealth countries, many of which retain the death penalty. (Many also impose sentences of imprisonment with "hard labour" - something most people would assume disappeared around the time of Charles Dickens or Oscar Wilde.) This gives our most senior judges the role of determining whether people are executed.

None of these countries has in fact (so far) executed anyone this millennium, but all have death rows, where those convicted must wait to see if this fate awaits them. The judges of the Privy Council usually consider a few cases each year where they must determine whether a relevant conviction or sentence should be upheld or overturned, and accordingly whether the person concerned should hang. It is then up to the countries concerned whether and when the executions are carried out.

It seems likely that the judges themselves are not supporters of the death penalty. In one case, a judge in fact made his feelings known, calling it a “cruel and barbaric punishment”. All must, at least in theory, decide the cases dispassionately. But it can’t be easy. There is some evidence, beneath the restrained and reasoned language of the judgments, of the struggles the judges go through. Words such as “moral”, “conscience”, and “inhuman” crop up more often than in judgments of other cases, as if the judges are straining to justify themselves when confirming a death sentence, or vent some sort of moral despair in dissenting judgments when unable to prevent it.

It might be expected, in any event, that the added responsibility in considering these appeals would, to borrow from Dr Johnson’s remark, “concentrate the mind” more than usually. Perhaps there are different ways in which these decisions are reached as a result.

Many of the cases in recent years concern defendants who are (or may be) mentally ill, or may have learning disabilities or other psychological issues. There are echoes here of some disturbing cases from other countries, including the USA. In the case of Robinson ([2015] UKPC 34), for example, the appellant was diagnosed as schizophrenic, and while the murder conviction was upheld, the Privy Council ordered the sentence of death to be commuted to that of life imprisonment. Others applying to the court have been less fortunate. In the case of Taitt ([2012] UKPC 38), the medical evidence was that the appellant had a learning disability that put him in the least able 1% of the population, with a reading age of 6 or 7, and there were serious concerns that this person wouldn’t have been fit to stand trial. But the court upheld the conviction, and the death sentence was retained.

Other cases have considered whether the evidence was sufficient to convict in the first place. Hunte ([2015] UKPC 33) was a case in which the conviction depended in part on a confession statement. That statement was obtained in circumstances that cast real doubt on whether the statement could be relied on as accurate. The appellant was refused private access to his lawyer; there was no independent witness to the statement; and no properly detailed record of what was allegedly said. Despite finding that there were “seriously unsatisfactory features” of this evidence, the Privy Council upheld the conviction, and the death sentence remained.

The most difficult case to understand is that of Dial and Dottin ([2004] UKPC 4). There were three crucial aspects of this case, which were not in dispute: 1) the prosecution case stood or fell on the credibility of one prosecution witness to the shooting, which took place in his premises; 2) it emerged after the trial that this witness had lied on oath; 3) it was a “serious lie”, about a material matter in the case (the type of gun allegedly used, found in the witness’ premises). It might be expected in these circumstances that a retrial would be ordered, so a jury could consider the evidence afresh; or, if that wasn’t possible, that the convictions would simply be overturned. But the Court of Appeal in Trinidad and Tobago upheld the convictions, and so did the Privy Council: the men remained sentenced to death.

In terms of understanding the Privy Council’s decision, it should be noted that the law applying to Trinidad and Tobago, and to this country, requires appeal judges to assess the weight of any new evidence in the context of the evidence given at trial. In many appeals, evidence that a prosecution witness has lied has been held to be insufficient to overturn a jury’s verdict. For example, it might already have been clear to the jury that the witness had lied on other occasions. Or there was a inarguable explanation for the lie that couldn’t reasonably have undermined the key parts of the person’s evidence. Or the rest of the evidence was so overwhelming that the evidence of the witness couldn’t have made any difference.

What is odd in this case is that none of these sorts of qualifications applied. What the Court of Appeal did, and the Privy Council endorsed, was determine that there was a “ready explanation” for the witness’ lie – to give an innocent explanation for the presence of the gun in his premises. This explanation certainly seems possible, even likely; but it can hardly be said to be inevitable. And even if it was the explanation, the fact that the witness was prepared to lie on oath about that matter surely calls into question how reliable the rest of the witness’ testimony was. In a further twist, the witness had attempted to retract his evidence identifying the men after the trial - a retraction that wasn't believed. But that further calls into question how reliable the original evidence was: clearly this was a person very much inclined to lie to a court. It’s true that a jury might nevertheless have decided that they believed the witness. On the other hand, they might not. We don’t know.

The approach the Court of Appeal took was to determine whether, considering all these matters, the Court of Appeal (the judges concerned) had any doubt about the appellants’ guilt. The Privy Council endorsed that approach. But the leading case setting out the test on how to determine such cases stated unequivocally that the question for the appeal courts “is whether the conviction is safe and not whether the accused is guilty”, and that if any new evidence “might reasonably have affected the decision of the trial jury…, the conviction must be thought to be unsafe”. The two approaches can't be reconciled.

There were two strongly-worded dissenting judgments in the Privy Council. Why, nevertheless, did the court uphold these convictions? One possibility is that there was something about the case that doesn’t emerge from the judgments, and/or additional evidence that wasn't put forward at trial that was taken into account. Another might be hinted by the following comment in the judgment: “The Court of Appeal in Trinidad and Tobago… is much closer than their Lordships to the customs and habits of that State and the behaviour and reactions to be expected of its citizens.” This may hint at a cultural or political reluctance to interfere in decisions reached by the courts of former colonies like Trinidad and Tobago.

The case hardly got any coverage in the UK. Like the other Privy Council cases, it doesn’t concern UK citizens, and so isn’t newsworthy here. Its main effect in this country was to cause confusion over the correct test to apply in new evidence cases.

At least some good emerged on the other side of this case. The sentences of both men were eventually commuted to life imprisonment. And in the last few years, the original test for approaching new evidence cases has been affirmed - as it happens, by cases heard by the Privy Council.

By the editor, Jan 18 2016 06:18PM

This winter's floods have a very British feel. Of all natural disasters, flooding suits us - the relentless rain, the humdrum misery, the grumbling, the Dunkirk spirit. The floods are also revealing of a number of our other concerns and tensions - rural versus urban, North against South, billions spent on HS2 while millions are cut from flood defences. A few features in particular emerge this time.

The first is the story about the Chairman of the Environment Agency, who took a Christmas break in Barbados while the flooding continued. Here was a neatly packaged stocking filler for the papers: pictures of a sun-drenched paradise to contrast with grey sodden Lancashire; the taxpayer footing the bill for the six figure salary while funds are denied to homeless flood victims. But the likelihood that the period of absence made any practical difference seems remote, as is the fact that the absence was in Barbados and not, say, Barnes. Moreover, the Chairman is unlikely to have had a hands-on role. And moreover still, the Environment Agency is responsible for protection against long-term risks, rather than the provision of relief.

Some may agree with all this, but still say - it was the Chairman's job to be a figurehead, and show that he cared, and so choose somewhere less jarring to spend his Christmas. (Shades here of the Death of Diana: the enforced display of heart on sleeve.) Presumably the Agency's PR department was quickly on to this, hence issuing a statement that the Chairman was not available because he was simply "at home with his family". Unfortunately it soon emerged that "at home" meant the second home in the Caribbean. Now he has resigned. The Daily Mail describes him as "disgraced".

A strange - very modern - form of disgrace. Clearly what was at stake here was show rather than substance. The Chairman's fault, according to this view, is not pretending sufficiently well. He should have pulled on his wellies, cancelled his Christmas plans, and arranged a photoshoot looking concerned alongside some soggy locals. The Agency's PR department was similarly at fault for failing to spin the story well enough.

There seems a perverse madness in suggesting an alternative: that public funds aren't spent on this kind of smokes and mirrors game, and are spent instead on doing the work that the Agency was set up by Parliament to do; that the media investigate actual incompetence and wrongdoing by such organisations, rather than feign outrage at the way someone spends his Christmas holiday. But this focus on non-substance is endemic, infecting all public sector organisations as well as the media. Presumably nobody who runs these organisations considers that the public is willing to look beyond the lurid and the superficial. In the "real world", they will say, such an alternative suggestion just wouldn't work. The show is the real.

The second issue is dredging. The Government announced that it will support the dredging of rivers, to reduce flooding on farmland. Farmers of course depend on subsidies. This is justified partly on the basis of food production (hardly a justification on its own, given that plenty of poorer countries in desperate need of the trade are capable of supplying us), and partly on the basis of protecting the environment. If such subsidies are truly designed to protect the environment - and there seems a good argument for that - it seems odd that we pay people effectively to pretend to be farmers, rather than act as proper guardians of the landscape. Allowing farmland to be flooded - even though it may ruin crops - causes no clear environmental damage, but serves the wider community by protecting towns from being flooded further down the river. But instead of this, we pay farmers to produce expensive crops, we pay for dredging, and we pay billions in reparing the damage to homes and businesses, and the misery continues.

The third issue is housing. Many of the new houses now being promised will be built on floodplains, so more and more houses will continue to get flooded. Essentially, this is because of restrictive planning laws preventing houses being built in more sensible areas, while there is a desperate need for new homes to be built somewhere. This is turn is caused by the public addiction to rising house prices. Those who own houses, or aspire to do so, are responsible for the political inertia in getting the planning laws changed. Yet rising house prices hardly benefit anybody. Housing weatlh gets passed on to future generations, or eaten up by nursing home costs. High housing costs increase the amount you need to pay your local businesses - your local builder and plumber have to find somewhere to live, and charge for their services accordingly. It distorts and destabilises the economy, making us all worse off in the long run. It's a mirage of wealth.

In the autumn, the Daily Express warned us of the "coldest winter in 50 years". This last December turned out to be the mildest on record, as well as one of the wettest. The Express says something similar every year, and keeps getting proved wrong. But presumably such non-science helps sell the paper. Perhaps many of us know it's nonsense, but can't help ourselves.

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