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