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Is a new law really necessary? – 2

Lawyers are very polite people. So polite in fact that it can be hard for the non-lawyer to realise when lawyers are being really quite rude, especially about other lawyers. And even more especially about Dominic Raab, who continues to miss even the low bars set for him.

Such was the case recently over his plans to change the Human Rights Act, a perennial bugbear of the Tory right. Despite the endless ill-informed comments about this legislation from successive Tory Home Secretaries (usually at party conferences where accuracy is less important than audience-pleasing soundbites), there have been at least 3 reviews of the Act since 2010, all of which concluded that there was no “compelling evidence of a problem” or “viable proposals for reform“. Never mind. Raab needs to find something to do at the Ministry of Justice. But rather than sorting out the virtual collapse of the criminal justice system, he published his proposals to introduce a bill of rights last December just as Partygate was kicking off. The consultation closed on 8 March. Raab thanked Sir Peter Goss, a retired judge appointed to review the Act, for his work which, he said, had informed his thinking. (The judge had said that the HRA generally worked well but would work even better with his proposed changes. These proposals too were published last December.)

Unfortunately, Raab completely ignored the judge’s proposals. This week the judge hit back. “The reaction of government has been to produce the Ministry of Justice consultation paper, which does not respond to ours, is not grounded in anything even approximating the exercise we conducted, but nevertheless asserts that the Human Rights Act is not working well.” Ouch! This is the judicial equivalent of “It’s a load of old rubbish. File in the bin.” Even Robert Buckland, Raab’s predecessor, gave him a kicking saying his proposals were pointless (“very 2015” Ouch again!) and a solution to a problem which no longer existed, if it ever did.

This last comment goes to the heart of why so many proposed new laws so often achieve little – and can do great harm.

When should a new law be introduced? And why? Some ideas.

Those wanting a change should show:-

  1. The mischief they seek to address or the improvement that is needed. What wrong will this remedy? What will it improve and how? Too often it is doing for the sake of doing. Or more often appearing to be doing.
  2. Is it really the case that this issue cannot be addressed by existing laws or other measures? We have enough of the bloody things on the statute book, after all.
  3. Is the problem sufficiently serious to warrant change? Partly this is a matter of priorities. But some problems are ones which cannot easily be solved or at all, are inherent in the tensions between conflicting interests. A bit of realism to counter the “There should be a law against it.” tendency in voters and politicians is needed.
  4. Will legal change resolve or alleviate the problem? Will it create other problems instead?
  5. Whether what is proposed is a proportionate way of resolving the problem. Not all problems can be resolved or only at an unacceptable cost.
  6. What are the consequences, especially the unintended ones? Do they harm the interests of others? If so, how badly? Can these be easily mitigated? If not, is it really worth going ahead or are there another measures which might work better?
  7. Is this consistent with other legislation or initiatives the government is enacting? This may be unduly hopeful but some attempt at consistency would be welcome.
  8. And, finally, how is this going to be implemented / enforced? If there are no or few resources to back up the new intentions, what – really – is the point?

Take, for example, the Transport Secretary’s proposal to introduce a law reversing the decision made a few years ago by a previous Transport Secretary allowing firms like P&O not to inform the British authorities of redundancies. A cynic might wonder whether this will ever see the light of day, now that P&O is no longer front page news. But even if enacted, what is its point unless the Minister proposes giving himself powers to stop companies making those redundancies. All it does is give the illusion of power while doing nothing for those affected.

As for Mr Raab – he wants a Bill of Rights to give freedom of expression more importance (paras 204 – 217, if interested). This section is incoherent and poorly argued, mixing up free speech, online harm, the role of the media, rights to privacy, the protection of children and national security – and all in just 14 paragraphs! Still, sweet of him to try. But has he talked to the Home Secretary lately, whose Police, Crime, Sentencing and Courts Bill seeks to place pretty severe restrictions on any actual expression of opinion?

And so on, for any number of current legislative proposals. The desire to be seen to be doing something often seems to be the only important consideration. It’s as if what matters most is not effectiveness but the appearance of busyness. Ironically, this simply creates more work for lawyers and judges to try to sort out the mess thus created, more material for politicians to grumble about, more proposals – and on it goes. It’s law-making as Escher might draw it.


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