Tuesday, October 22, 2013

Britain's most senior judge criticises politicians' poor legislation


From Brother Ivo:

From time to time, Brother Ivo has written of his concern about judges who adopt an activist legislative role. He does not object to the application of common sense, which is necessary to smooth out the rough edges of legislation, but rather the dimension of unaccountability when they trespass into areas of significant social policy, and then proceed to make value judgements so discordant with the views and attitudes of the average citizen that they step beyond an interpretive and adaptive role, becoming self-appointed legislators.

Last week a lecture was delivered by the President of the Supreme Court which explained why judges sometimes feel called upon to be more pro-active, and occasionally enter the public-political debate about 'Justice in an age of Austerity'. Judges are not well known to the general public, and so when one of them steps out from under the wig to explain himself away from the courtroom setting, it can be both interesting and instructive.

Notwithstanding an innate suspicion of such activity, one must be open-minded and give credit where it is due.

In the interesting but little publicised Tom Sargant Memorial Lecture for the campaigning organisation Justice, Lord Neuberger chose a few issues to explore before an audience, principally of lawyers but with entertaining accessibility to a wider audience. Its 19 short pages are well worth a read.

There is much to like. The style is thoughtful, measured and accessible. It is seasoned with a charming self-deprecation as he revisits his own judgements and observes: "Reading some judgements one rather loses the will to live, and that is particularly disconcerting when it is one's own judgement one is reading."

Would that our professional legislators had such self-awareness as they listen to their own sound-bite-crafted obfuscations.

It was the passage about our legislators' technical failings in paragraphs 14-18 which caught Brother Ivo's eye. The sheer volume of statute law and statutory instruments has tripled since 2005, and Lord Neuberger correctly describes it as "a welter of ill-considered legislation". He resists the common notion that the best response to perceived public problems is yet more law, and recognises that such responses often create complexities and impose costs. He does not use the term "the law of intended consequences", but that is plainly a contributing aspect to the problems he describes.

When one of our senior judges identifies such difficulties, our members of Parliament would do well to take notice. Lord Neuberger spends a little time illustrating how hopelessly incomprehensible modern law-making has become, even for those who have spent a lifetime studying and interpreting it.

He illustrates his point with reference to the appalling mess that was presented to the House of Lords in the Financial Services (Banking Reform ) Bill. Lord Turnbull described the legislative dog's breakfast with which the Lords grappled:
..Total amendments run to 116 pages and Government amendments account for 95 pages of that; more than three times the length of the original bill. That tells us something about the process of legislation. We are dealing with amendments to amendments to amendments which are in turn amending Statutes which have already been amended more than once.

Unsurprisingly, a point can be reached where nobody has a clear strategic picture of the law that is under consideration, still less the detail. If the problem remained within Parliament it would be bad enough, yet much uncertainty and sometimes even inconsistency is then passed on to individuals, public authorities and companies, who must understand, comply, and adjust to it. A whole raft of advisers, trainers, supervisors and monitors have to be engaged to work out what this might all mean and all of this must be paid for by the end-user.

In times of austerity, when economies have to be made, our Parliamentarians surely owe a duty to be accurate, targeted and clear in the obligations and associated costs which they impose upon us. Our Lord Chief Justice plainly believes that this is not currently the case.

Few of us can imagine the problems within the complex structures of the financial services industry, but Brother Ivo recently came across of a more immediately accessible example of legislative folly when he posed the problem of excessive and poorly drawn legislation to Zac Goldmith MP at a public meeting.

Mr Goldsmith promptly acknowledged the problem, and referenced the Government's policy of restoring single-sex wards in hospitals. The MP was proud of a good and popular reform until nurses at his local hospital drew to his attention the absence of an age limit in the Act, which obliged them, under threat of fine, to rig up wholly unnecessary curtains in their neo-natal wards to separate infants in their incubators. One might wish we lived in a country where enforcement of such stupidity would be unthinkable, but evidently that train of thought left the station several years ago.

We need simple examples like this to encourage us to think about the scale of the problem across the board. Laws are routinely passed with inadequate thought and understanding, still less intelligent scrutiny, and it is good to hear a senior judge flagging up the problem, albeit in a low key erudite fashion.

Brother Ivo can be a little less constrained. We need to call our members of Parliament to account for posturing too much, being lazy and too complacent about that which they alone initiate, and for which they alone owe a public duty of quality control.

The Legislative Chamber is frequently poorly attended during committee stages of bills, when early errors are supposed to be identified and eliminated. Instead of attending to their primary task of holding the Executive to account and scrutinising its plans to further interfere in our lives, they are too busy acting as surrogate social workers or part-time spin doctors regurgitating the party line in the studios of Millbank.

It would be a great contribution to our democracy if every broadcaster agreed to open every policy-scrutiny interview with this simple question addressed to the politician: "Have you read this Bill in its entirety?" One suspects the number answering in the affirmative would be extremely low, if one could be sure of an honest answer. Yet if that is not their job, whose is it?

One recalls the late Ronald Reagan instructing his staff: "Don't just do something, stand there." It is not bad advice in an age where a government's zeal and success is sometimes measured by the length of its legislative programme. It is when one hears informed words of caution from men such as Lord Neuberger that we are encouraged to stop and think.

Perhaps if we required our legislators to do much less but do it much better, we might be better governed. There was once a criticism of Parliament that it contained too many lawyers. There is still a high proportion, yet we do not see that translating into a keenness to read and critique the legislative output that continues to emerge with varying degrees of coherence.

Brother Ivo does not know how we begin to tackle this problem; he only knows it needs to happen. The tide of legislation rolls out relentlessly. He senses that if more parliamentarians spent more time in the Chamber studying the text, there might be more of them joining ordinary folk up and down the country contemplating their output, with their heads in their hands, muttering "Please make it stop".

Brother Ivo is the Patron Saint of Lawyers

34 Comments:

Blogger Corrigan said...

Essentially, what he's saying is that there are too many full time, professional, career politicians who are passing legislation for legislation's sake because they need to be seen doing things. That's not really a failing of the system, it's a failing of society.

22 October 2013 at 10:52  
Blogger John Wrake said...

Brother Ivo,

A commendable post, but with a notable omission.

You do not mention the raft of legislation emanating from the European Union, which our membership of that unholy organisation requires our legislators to endorse and some of which does not even get the scrutiny of Parliament.

Perhaps the first question which should be asked of any politician commenting on current affairs should be "Have you read the whole of the Lisbon Treaty?

John Wrake.

22 October 2013 at 10:56  
Blogger graham wood said...

Corrigan. Absolutely right!
One primary example is the result of non scientific, but ideologically obsessed, politicians passing the 1998 Climate Change Act which, laughably, is aimed at preventing global temperatures from rising by more than 2°C (3.6°F) and so avoid the most serious consequences of "global warming."

Net result? Even the "warmist" and alarmist IPCC organisation concedes in its latest report that temperatures have not risen for the past 17 years !
Time to repeal the absurd Act - but of course they will not as the loss of "face" would be too severe.

22 October 2013 at 11:36  
Blogger John Thomas said...

Yes, proceeding from John Wrake's comment (which is, of course, true), maybe our home-grown legislators are passing so much, so fast, in order to head off the criticism that (obvious, really) they are becoming redudant - a self-made redundancy for those who support the mad/bad EU membership.

22 October 2013 at 11:43  
Blogger David B said...

One bit of litigation that we could really do with would be one making it compulsory, on pain of the tower, for our legislators to remove five words from the statute book for every one they add to it, until such time it would be reasonable for ignorance of the law to be no excuse.

David

22 October 2013 at 13:21  
Blogger Ars Hendrik said...

Politicians have never, ever read or understood the Bills before them or the Acts of Parliament that they become. The same is true of the innumerable amendments and Statutory Instruments that change the law without the need to alter primary legislation. Drafting clear legislation has always been the business of government legal departments and there should be considerable scrutiny built into the process to ensure that the resulting law is clear, unambiguous and reflects the wishes of the government/proposer.

A whole body of law known as Administrative Law has arisen out of parliament passing laws which are clearly duff – the courts then having great fun interpreting the 'intention' of Parliament when they are making case lay. This usually happens when the executive (government) legislates to do things that the judges (judiciary) believe to be against natural justice or established case law.

The example of the hospital beds, though, sounds as if a government lawyer took his eye off the ball, as it is the lawyers who are tasked with considering legal eventualities and unintended consequences, not politicians (unless, of course, you only want politicians who are legally qualified and devote the majority of their working days to pouring over legislation and case law).

22 October 2013 at 13:32  
Blogger David Hussell said...

Brother Ivo,

A much needed post telling it from the viewpoint of a very senior lawyer. Thank you Brother Ivo.

Picking up John Wrake's point, I understand that 75% of "our" new laws are simply rubber stamped copies of the EU's never ending restrictive, dictats. The general media is part of this conspiracy of silence which pretends to the British people that Westminster is still a powerful Parliament when in fact, powers have long been deliberately ceded to that pretend Parliament in Brussels. There will be no end to their output as it is staffed by career bureaucrats who have an ideological belief that it is Big State, Government, not the people that possesses all the wisdom , to save the foolish little people from themselves.
Yes, so it's no doubt that the new laws are rushed through and not thought out, because they are continuing to pour in, deluge like from that would be great controller of everything, the EU. The sheer scale of the torrent is I believe, a large part of the problem.
Add to that the lack of experience of the wider world of our career politicians and you have a growing problem, with the legal framework becoming increasingly divorced and estranged from both everyday life and most peoples' wishes for their country and their lives within it.
About 40 years ago an author called Schumacher (spelling?) published a popular book called "Small is Beautiful", and I still think that he was right. The EU is far too big to act as an effective nation state, using the normal mechanisms, but that is what it is trying to become. Think USSR !

22 October 2013 at 16:53  
Blogger Avi Barzel said...

Hear, hear, Mr Graham Wood, but no more from me as most here know of my obsession with what I call the "Scam of the Two Centuries" and His Grace once even gave me a soap box to briefly harangue any who cared to listen.

22 October 2013 at 17:09  
Blogger graham wood said...

David. "The EU is far too big to act as an effective nation state."

Whilst I agree with this, and as I'm sure you already appreciate, the issue of the EU's claimed "competences" to make British law and policy run a lot deeper and far more menacing than the matter of size.

The fact is that it lacks all democratic legitimacy, being an unelected body and unelectable, as well as completely unaccountable to ANYBODY, let alone the British people.
General elections and British governments come and go, but none of this makes the slightest difference. Our government IS Brussels!
Thus it mimics perfectly its former counterpart the USSR.

22 October 2013 at 17:15  
Blogger graham wood said...

To illustrate the reality of our powerlessness in the UK re my last post. There is a strap on the EU Referendum Blog today. It says all:

"Shale gas firms to be brought under "robust" new EU laws".

No doubt about it, this is the kiss of death for any renaissance of British energy supplies and with massive implications for British industry and our future energy bills.
As usual, courtesy of the EU British policy, such as it is, is quickly nipped in the bud and rendered useless before it has even been properly formed in relation to shale.
The potential to transform our economy for the better will have gone - but then that was always part of the plan to hamper if not cripple, independent British industrial output in favour of a pan EU "policy".
Alternative? It must be UKIP for any "conservative" at every opportunity.

22 October 2013 at 17:42  
Blogger jsampson1945 said...

Provided that it sports the correct party rosette, a beer glass can be elected as an MP. After leaving the EU, the next job is democratising the UK.

22 October 2013 at 18:33  
Blogger Mr Integrity said...

Bro.Ivo,
Seems to me that someone somewhere out to ensure work for the boys forevermore.

22 October 2013 at 18:51  
Blogger David Hussell said...

graham wood,

I agree absolutely ! You understand the nature of the beast and therefore the depth the of the problem. But few, even amongst the reasonably well educated and intelligent of that group interested in politics, seem to be able to grasp these quite straight forward, albeit strategic points, regarding the true character of the EU and our impotence to improve our national lot whilst we are imprisoned within it.

I don't consider myself as possessing a particularly penetrating intelligence, but tend to plod along doggedly until I find something I consider stands up well as approximating to the truth. So how can so many truly bright people be fooled by the half truths and propaganda, that's what I ask.

And as for our politicians, who for over 40 years now keep signing agreements and shrinking our nation state, I can only assume that they are not at heart democrats, but really want to deceive us into becoming ruled, progressively, by a distant elite. I suppose they imagine that their descendents will be part of such an elite ? I don't understand their motives, I really don't. Or perhaps they think that, ahh a little bit more of our independence lost is not that important, but in the end we will say, No. But really we are not all that far now from the end game, I fear.
Unless we vote decisively to exit I really fear for the future as all this can not possibly have a happy ending.

22 October 2013 at 18:59  
Blogger David Hussell said...

Mr Integrity,

There's much in your point. Someone told me that in 1946 the total number of full time people involved in "democracy" in the UK, ie MPs and all their spear carriers and baggage haulers, numbered 3000 persons.
Now with "Parliaments" in Scotland, Wales, quangoes galore still, plus all the EU personnel the true number , although difficult to be exact about, is probably about 10 times as many. So before we ruled an Empire with a handful , now we fail to govern ourselves properly with a small army ! Yes it is jobs for the boys to a considerable extent I fear.

22 October 2013 at 19:05  
Blogger Office of Inspector General said...

Well done Corrigan and all those who followed in his wake...

The Conservative party started to go bad when Head Office deprived the local constituencies of selecting their own candidate. Now, half their MPs are self serving, self congratulating ‘reforming’ types who want to, God, this man can hardly bring himself to say it, “make a difference”. The SSM outrage proved that...

{TURNS HEAD AND SPITS}


22 October 2013 at 19:31  
Blogger Mrs Proudie of Barchester said...

Goodness! I must say I quite agree with Brother Ivo and many of the comments on this subject. Sir Abraham Haphazzard, on the other hand, is stoutly against. Being a legal eagle this comes as no surprise, but I was particularly aghast at his proposal to introduce the following in the House: The Abolition of Common Sense Bill: The Prevention of Defecation in Woods (Bears) Act; The Prohibition of Nasty Things (Amendment) Act and the Getting out of Bed in the Morning (Legal Advice) Act and the Bruce Forsyth Abolition Bill amongst others. On reflection however, the last one has serious merit, don't you think?

22 October 2013 at 19:44  
Blogger Office of Inspector General said...

Mrs Proudie. “Abolition of Common Sense Act”. You have that right, dear thing.

We demand it’s repeal, what !

22 October 2013 at 20:06  
Blogger Mrs Proudie of Barchester said...

Agreed Inspector, and it's lovely to see you play nicely with that happy lad who has joined us... it warms the cockles of my heart and moves me to allow the urchin cleaning my chimney a day off...

22 October 2013 at 20:17  
Blogger Avi Barzel said...

And "making a difference" they are, Inspector, although perhaps not in the way you and most here would prefer.

Perhaps I have been absent or inattentive, but has His Grace made known whether he still has any vestigial tendrils of hope in your Conservative party? Methinks that only a true faithful and valiant Martyr, one able to hold his hand to the flame without flinching (as punishment for singing in to the Conservative gov't?) could continue to hold faith in it.

22 October 2013 at 20:22  
Blogger Florescaroly said...

Vanitto style variety of the foremost beautiful gemstones jewellery london on the planet so as that you will look swish, elegant and delightful.

22 October 2013 at 20:28  
Blogger Mrs Proudie of Barchester said...

Goodness! We have hawkers in the Temple!

22 October 2013 at 20:38  
Blogger bluedog said...

Brother Ivo say, 'Brother Ivo does not know how we begin to tackle this problem'.

Start by enforcing repeal of all legislation passed between 1996 and 2010? That's when the UK went totally off the rails, but Cameron, as proud heir to Blair, doesn't see it that way.

Perhaps that nice Mr Farage will.

22 October 2013 at 21:00  
Blogger Office of Inspector General said...

Avi. One understands His Grace is very much still a Conservative. But then again, weren’t we all at one time. The Inspector knows he is not alone in wracking his mind these past few years during peaceful modes as to where his allegiances lie. You see, “Conservative Lite” just doesn’t do it for him. It might for Cameron and his lickspittles, but that London gang are NOT the Conservative party, yet they are. Horrible, ain’t it !

Let this man assure you now that he is for UKIP, it’s a load off the mind. That’s for sure....


22 October 2013 at 21:17  
Blogger Happy Jack said...

Happy Jack does not like to be a suspicious man. But he has been mulling over who benefits from legal confusion. If Parliament has a lawyers aplenty, it might suit them for laws to be all muddled.

Happy Jack likes this saying of Ronald Regan: "Don't just do something, stand there." He has put it to his notebook.

22 October 2013 at 21:22  
Blogger Avi Barzel said...

Well, Inspector, fortunate indeed you are to have a viable choice of a party with a character for a leader with the proverbial snowball's chance in Hell. In our case, here over the Big Puddle, the Conservative Party under a Prime Minster with Big Brass Ones for a change does not measure up on all accounts, but it is a miracle of a difference from the tepid, kowtowing, UN and Arab league butt-kissing pinko-commie-loving poltroons we've suffered for decades. So, we tolerate lip-service to the Climate Alarmists and suffered through unquestioned and unchallenged imposition of SSM by our betters. Still, with nothing but empty seas and sea monsters to the right of our federal Conservatives, the alternative is unimaginable.

22 October 2013 at 21:47  
Blogger Avi Barzel said...

Intruder alert, intruder alert at 22 October 2013 20:28! Man all stations and do not click on links!

And in an seemingly English sown together from the lips of a Roma tinkerer and a Bengali snake-charmer: Vanitto style variety of the foremost beautiful gemstones jewellery london on the planet so as that you will look swish, elegant and delightful.

Credit to Mrs Proudie, who with a swish, elegant and delightful, rang the alarum bells, proclaiming: "Goodness! We have hawkers in the Temple!"

22 October 2013 at 21:59  
Blogger David Hussell said...

Happy Jack,

Sorry to threaten your happiness, but you are on a rather "robust" site here Jack, so you must take your chances with this crew. So without wishing to be unkind, I'll withdraw half of that concern if I may. To proceed, if you would so permit me,

Parliament has long had lawyers 'a plenty, even in times well past, but then we also had laws that were easy to understand and they were few in number. So your explanation, though plausible, being based on human avarice, will not wash. It's due to the other things that have changed, not due to more lawyers.

The considerably extra volume goes a long way to explain it I believe, but there's much more to it I expect, and I'm not claiming to be an expert. Another fairly obvious factor is the sheer impractical, theoretical nature of most "modern" career politicians most of whom have never run a corner sweet shop. They are out of touch with their electorate, they are not "of" the people , and they have no experience of life outside the Westminster bubble. There's two factors , others may be able to add more.
Now where's Len when you need him ? Surely he must have some incredibly apt, quotation for us ? How about, "Where there is no vision the people perish". Now where's that from ? It's from The Hebrew Bible I remember, so over to you, Avi !

22 October 2013 at 21:59  
Blogger Avi Barzel said...

Ah, that would be an English rendering from mishle Shlomo, the Writings of Solomon, David. In our Tanakh, your "Old" Testament. That was fairly easy, but had to Google the spot as I'm a poor Bible scholar, though I try every day, and for you it would be in Proverbs 29:18.

22 October 2013 at 22:25  
Blogger Avi Barzel said...

To your excellent explanatory note to Happy Jack, David, I would tentatively add that in a addition to volume and the insipidity and impracticality of our careerist politicos, we suffer from the depressing effects of overly-legalistic verbiage and an inability to agree on common terms, meanings, ideas and ideals, thanks in part to the lack of classical and historical literary education among justices and law makers. Simply phrased, we are losing not only the beauty of the English language, but its very foundations...and few seem care.

22 October 2013 at 22:40  
Blogger David Hussell said...

Avi,

Thank you. I do not have a photographic memory but tend to remember associations, concepts and groups of ideas. It must be very useful to have very good recall.

Yes, in the King James version, of Proverbs 29 : 18, and the New Jerusalem translation, often preferred by Catholics, it says "vision" but newer versions, eg the New Revised Standard Version, which is very popular now, it says "prophecies" , but the general drift is similar.

But I bet Len could quote loads at us !

It's good night from this side of the Atlantic.

22 October 2013 at 22:47  
Blogger Marie1797 said...

Whilst drafting laws the silly buggers have tied themselves in knots with contradictions and gobbledygook that nobody can really understand or cares to wade through and that “nice” Mr McBroon was a master creator of such convoluted complications along with the EU lawmakers. I hope people will soon be making their own laws using common sense which takes into account human nature and circumstances.

23 October 2013 at 02:00  
Blogger David Hussell said...

Marie 1797,

"I hope that people will soon be making their own laws using common sense which takes into account human nature and circumstances"

Could you assist me by clarifying what you mean by that, please? Are not laws to apply to all society rather than individuals of self selected small groups?

23 October 2013 at 08:11  
Blogger Marie1797 said...

Well yes laws are supposed to apply to all, but when they become so confusing, complicated and destructive having strayed so far from the ten commandments and common sense as parliamentary legislators dream up ever more rules and regulations to try and order civilians into a behaviour that is not natural, or use laws as a sneaky way of relieving people of their money through fines. Although I would support a law banning the burkha face covering as a secutiry measure with a £1000 fine for non compliance.

It encourages people to think sod it and start to form groups that challenge all this waffle with their own simpler, understandable easier to adhere to laws based around Magna Carta again.

That shambolic lot of contradictory tripe that is the marriage bill covering SSM will tear Churches apart.
Or the law that says parents cannot hit their children when naughty, it doesn't stop child abuse it sets children against their parents and teachers.
The change in the licensing and gaming laws encourage poverty, and decline in society not social improvement and aspiration.

23 October 2013 at 17:28  
Blogger dutchlionfrans1953 said...

This comment has been removed by a blog administrator.

27 October 2013 at 12:37  

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