14th June 2022
Let us start at the beginning, for it is a very good place to start.
And at the beginning of the Northern Irish Protocol Bill, just after the title, purposes, and preamble, is clause 1.
(A ‘clause’ is what becomes a ‘section’ by legal magic when a Bill becomes an Act.)
Clause 1 provides:
There will be time to look at the other provisions of this Bill, but let us take a moment to look at clause 1.
The content of the clause is not part of the title, purposes or preamble to the Bill.
No, we can check, and it has a clause number.
Clause 1 is intended to be part of statute, to have the force of primary legislation.
But.
It does not seem to be law.
I do not know what it is.
It is called ‘Introduction’ – as if it was part of some Penguin Classic.
But the the title, purposes and preamble are usually all the ‘introduction’ a statute needs.
For example. the purposes tell us that the Bill is to make “provision about the effect in domestic law of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement, about other domestic law in subject areas dealt with by the Protocol and for connected purposes.”
That will tell a court what the Act will be for, if a court needs an introductory aid to construction or interpretation of any of the provisions.
The provisions of this clause 1 do not create obligations, or confer any discretions or rights.
What are they doing?
Are they capable of legal effect, in and of themselves?
Are they intended to have legal effect, in and of themselves?
Are they intended to be aids to construction or interpretation of any of other provisions, in the case of ambiguity or doubt?
If so, how?
What are they supposed to be?
They read more like a policy statement or explanatory note for the Bill – but these are separate documents that the government has also published.
Happy reading to all
NI Protocol bill:https://t.co/LWhwyn58Uu
Bill explanatory notes:https://t.co/xQtjhUkGXB
Policy paper:https://t.co/JwOIVMMusT
Legal position:https://t.co/B0s2hyDWxw
— Anton Spisak (@AntonSpisak) June 13, 2022
The published explanatory notes do not help us:
“[S]ummarises”?
Is the purpose of a clause to “summarise”?
“[M]akes clear”?
Oh dear gods.
If the rest of the Bill needs a provision like this so as to “make” things “clear” then the drafting of the other provisions needs to be done again.
Perhaps clause 1 is just to get “Union with Ireland Act 1800 and the Act of Union (Ireland) 1800” somehow onto the face of the Bill – indeed on to page one – so as to placate unionists?
And, applying the rule against surplusage – that courts give effect, if possible, to every clause and word of a statute so that no clause is rendered superfluous, void, or insignificant (definition taken from here) – what actual difference does clause 1 make to the rest of the Bill?
If clause 1 were – say – to be deleted, what difference would it make to the legal effect of the Bill once enacted?
The fear must be that the creeping use of legislation as a form of political propaganda – press releases by other means – has now infected the very statutory provisions themselves.
It is difficult to imagine what the parliamentary drafter intends by clause 1 as to its legal effect.
Perhaps this has happened with other Bills – and, if so, please leave comments and links below with examples.
Perhaps it a commonplace, and I have missed it in other legislation.
But it does not seem right.
And it perhaps suggests that the government does not sincerely intend to place this Bill on the statute book, and that the Bill as a whole – and not just clause 1 – is merely for political consumption.
**
POSTSCRIPT
— Michael C (@dentedshed) June 14, 2022
**
Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.
For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
It reminds me of section 1 of the Sentencing Act 2020. Also utterly pointless!
The similarity of Clause 1 of the NIP Bill to section 1 of the Sentencing Act 2020 goes no further than that the word “Overview” is the heading of each provision. Section 1 of the Sentencing Act reads more like a table of contents to the entire Act. Taken in that light, section 1 is actually useful, especially for one, such as a relative of someone serving a sentence or a relative of a crime victim, who is trying to make sense of the sentence imposed on a defendant. And unlike clause 1 of the NIP Bill, section 1 of the Sentencing Act articulates no interpretative principles; rules of interpretation are instead contained in Part 13 (sections 397-408).
These are very good questions; and I don’t know the answer to them. I too have never seen a clause like this in a Bill. I just wonder whether the Parliamentary draftsman might have insisted on it to make plain the very radical and novel extent of the Bill
Perhaps, having left the EU in a huff, we’ve now decided to try and replicate the style of EU directives that have their Whereas recitals which are the followed by the operative Articles. Perhaps the parliamentary draftsman are sub-tweeting Mr Johnson?
There are 173 recitals to the GDPR – https://gdpr-info.eu/recitals/, and 99 Articles. A slight imbalance?
That’s what I was thinking too. These remind of the recitals that the EU uses. (Or, because there aren’t that many of them, of the so-called “considerans” of considerations that precede a Dutch statute.) Of course, part of the idea of including recitals is to separate them clearly from the operative provisions, but still.
I have found useful and in turn frequently used “whereas recitals” in legal agreements as a practical means of establishing facts and circumstances prior to the operative articles.
Hi David. “Overview” clauses are used occasionally, see eg section 1 of the Building Safety Act 2022. They tend to summarise the content of the Bill; I agree that they are unnecessary and have no legal effect, and I have no idea why Parly Counsel drafts them. Sadly clauses with no legal effect are not unusual these days, eg there are some legislative provisions purporting to give Ministers power to do things they can do anyway. These are more political statements than legal rules. We would not get away with doing this in secondary legislation (the JCSI would be all over it) but it seems anything goes in primary. (Yes I am a government lawyer, on the verge of retirement and very much looking forward to getting away from this dreadful administration.)
The Trade Union and Labour Relations Act 1974, which replaced the previous Conservative government’s Industrial Relations Act, 1971, began, at the insistence of Employment Secretary Michael Foot, “The Industrial Relations Act, 1971 is hereby repealed.” But because some parts of the Act were to continue in force, Section 2 had to start, “Notwithstanding Section 1, the following sections of the 1971 Act remain in force………….” (I may not have this word perfect.)
I make the point only to say that playing political games in legislation isn’t new.
I think that the then First Parliamentary Counsel was wheeled in to tell Michael Foot he couldn’t do what he wanted, but Foot won the battle (if not the war.)
FWIW, the Online Safety Bill has what looks to me like a very similar Clause 1 – headed “overview”. For good measure each Part of the Bill has one too.
https://bills.parliament.uk/bills/3137
As an American this is a further Americanization of British politics. See for instance I.102.a of the USA Patriot Act “ (a) FINDINGS.—Congress makes the following findings:
(1) Arab Americans, Muslim Americans, and Americans from South Asia play a vital role in our Nation and are entitled
to nothing less than the full rights of every American.” And then it goes on to effectively strip those rights.
Is it really that unique? Sections 1 and 2 of the Data Protection Act 2018 are “summarising” provisions as well.
I’ve seen this kind of thing in particularly hairy Acts. For instance, section 1 of the Data Protection Act 2018 just describes what the rest of the Act does. The Income Tax Act 2007 has an entire part that’s just an overview. Looking at this year’s legislation, there’s another example in the Building Safety Act 2022.
Is it intended to fall foul of the last recourse of the Parliamentary scoundrel?
“I do not like this clause because it is….[pause for dramatic effect] justiciable!!!!”
How about Section 28(b) of the Scotland Act 1998 (as inserted in 2016)? This ”recognises” the Sewel Convention that “the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.” I believe it was held in one of the Brexit cases (Miller 1?) that this provision had no legal effect whatsoever.
It’s not uncommon in Acts these days. See, for example, s1 of the Sentencing Act 2020, s1 of the Data Protection Act 2018 (and indeed multiple other sections throughout that Act), s1 of the Building Safety Act 2022 etc. Westlaw has a useful article on these sorts of provisions, which are referred to as ‘overview clauses’, authored by Daniel Greenberg.
Clause 1 of the 1977 Scotland Bill – deleted on i think 22 Nov 1977 in Committee of the Full House – you will recall this stage from the Maastricht Bill when Bill Cash wrought chaos – was entitled EFFECT OF THE ACT. So not in final Act (repealed after 1978 referendum) is an example of what you discuss
A pointless introduction section appears to arise very occasionally. eg s. 1 Data Protection Act 2018 – https://www.legislation.gov.uk/ukpga/2018/12/section/1; s. 1 Building Safety Act 2022 – https://www.legislation.gov.uk/ukpga/2022/30/section/1/enacted.
I think your conclusion is shrewd and accurate. The govt. is performative; it is not serious.
Yesterday started with Johnson very deliberately using the phrase “lefty lawyers” in an interview. I believe that they were working on the assumption that the courts would grant interim relief to refugees threatened with deportation to Rwanda – doubtless the Daily Mail “Lefty Lawyers Ground Rwanda Flight” front page was already mocked up. Since the courts didn’t grant that relief, ministers have behaved even more like headless chickens than usual. They didn’t expect to send the flight and I still believe they won’t – they just need to find someone else to blame.
If I’m right (and I have to accept that is a rare occurence) then the notion of drafting a bill purely to make it look (to the DUP in particular) like something is happening is entirely consistent with their approach.
After all, both (non-)events have diverted us from the inadequacies of the PM, just as prescribed by that nice Mr Bannon.
Perhaps the legal profession(s) should embrace the term ‘lefty lawyer’ as a badge of honour on the basis that anyone with a functioning brain , capable of reaching rational interpretations and conclusions is to the left of Johnson.
When the political sewer has leaked so much it’s started getting into laws, it might be best to avoid fishing for solutions in the rapidly rising pool of politics that’s forming; never fish in a cess pit.
It’s as if we’ve adopted the EU drafting practice of including the recitals before the actual articles (which are often the shorter part!)
For want of a Devil….
On the contrary, this approach now is encouraged. See the drafting guidance for Parliamentary Counsel (2020). https://www.gov.uk/government/publications/drafting-bills-for-parliament
‘It may help to give readers an overview of the whole story at the outset, so that they can understand each part in the light of the whole.’
Perhaps they wanted to say
‘For the avoidance of doubt it may help to give readers an overview of the whole story at the outset, so that they can understand each part in the light of the whole.’
There appears to be a similar provision in section 1 of The Wellbeing of Future Generations (Wales) Act 2015.
See also Section 2 of the Scotland Act 2016 that just casually chucks in the word “normally”.
https://www.legislation.gov.uk/ukpga/2016/11/section/2/enacted
Devolution legislation enjoys a special category where it is arguably appropriate to use “non-law” (duty bearing) language but which are law in status and force (which is different to intended effect or justicability/enforceability). Feldman covers declaratory and promissory legislation – the Act of Union 1706 and NI Act 1998 etc from p217 onwards. Feldman ‘Legislation which bears no law’ (2016) 37 Statute Law Review 3, 312-224
Other commentators who engage in drafting and OPC work would not consider purpose clauses completely alien. Most I’ve seen still disagree with them in substance/in general. But I think purpose clauses were recommended as early as the Renton report, and Miers (‘how to do things with legislation, or “everything depends on the context”’ (CUP 2016), p326ff) also engages with OPC efforts to make drafting more transparent and legislation more accessible. A lot of the work I’ve read recently from parliamentary counsel is all very helpful indeed to get an insider’s perspective on the important topic of drafting (which is covered very peripherally if at all at English law schools).
Any reader who has worked for or interacted with any large organisation (a definition of “large” for the purposes of this observation could approximately equal one with its own HR department) must surely have encountered “ManagementSpeak”.
There is an expression uttered (usually with an attempt at conveying cryptic wisdom) in this arcane tongue:-
“First rate managers hire first rate subordinates; second rate managers hire third rate subordinates.”
(There are localised variations of this, I’m sure, but note that the plagiaristic re-use of ManagementSpeak is limitless for the purpose of ordinary example).
I think that we are witnessing tell-tale signs of evidence for a new derivative:-
“First rate governments write first rate legislation. Second rate governments write third rate legislation.”
Sadly, I fear my copy of aforementioned (Governmentspeak?) might be truncated, since it does not extend far enough to provide the numeric rating of a government likely to produce legislation of this quality.
One can’t help but wonder how the Queen’s Most Excellent Majesty feels about having Her Most Excellent Name associated with this.
A similar example is the Subsidy Control Act 2022, which has an “overview and application of Act” in its section 1, then the first section in Chapter 2 of Part 2 (section 14) is “introductory”, and the first section in Part 3 (section 35, which forms the whole of Chapter 1 of Part 3) is also “introductory”, but other chapters and parts seem to manage without introduction. Most of the subsections in these three sections are entirely prefatory, but one or two operative provisions are thrown in.
https://www.legislation.gov.uk/ukpga/2022/23/contents/enacted
Most of the Acts passed so far in 2022 don’t have this sort of thing.
I suspect it’s there to reduce the risk of any Court interpreting the international agreement, and it’s earlier effect in UK Law, as superior to this UK Law. (“Parliament must have inadvertently …”.)
I should think kicking the can down the road is a purpose for this legislation. We are now 5 weeks from Parliamentary recess followed by the conference season God help us. Given that Parliament seems to work about 1.5 days/week that buys a lot of distance for Mr Johnson. Something might turn up.
As for the legislation, probably it has no purpose other than to pass the time.
For similar provisions see any Tax Law Rewrite Act, eg ss 1 & 2 Income Tax Act 2007.
Indeed – increased signposting was a key feature of the rewritten tax acts, and you can understand why ITA 2007 might need to cross refer to many of the half dozen new tax acts into which ICTA 1988 was divided over the 15 years of the project from 1996 to 2010 (ITEPA, ITTOIA, ITA, CTA, CTA, TIOPA).
The Corporation Tax Act 2009 started with an “Overview of Act” in section 1, and then the snappily-titled Taxation (International and Other Provisions) Act 2010 inserted an additional section A1 “Overview of the Corporation Tax Acts”. So that is Part 1, similar to Part 1 of ITA 2007.
Section 1 of the Capital Allowances Act 2001 is an early example, although that section is not titled “overview”, but section 1 of ITEPA 2003 is “Overview of contents of this Act”.
Perhaps this is all the fault of the tax lawyers. First up against the wall, etc.
I’d never actually read the preamble to a bill before.
“BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and the Commons, …”
And just like that, I am become a republican.
As Richard Thomas says, this was a deliberate innovation in the Tax Law Rewrite, intended to provide an indication of, and guide to, the structure of each Act – to help the reader ‘navigate’ as Parliamentary Counsel says. Nor need they be confined to long pieces of legislation. Many Part of the Tax Acts are headed up by similar Overview sections.
Here the Overview clause makes it abundantly clear that the objective is to disapply the NIP by making it no longer part of UK domestic law. Whatever you think of the legislation and its legality (in my view, not much), this clause does seem to have value. How much value depends on what the rest of it says. Curiously, it should have more value if the rest is actually well written (in legislative terms). As Parliamentary Counsel points out:
“The main risk of an overview is that it will be given some unintended effect by the courts. Risks may be minimised by ensuring the overview is accurate and drafting (sic) in a way that makes it clear that it is intended merely as a signpost.”
All sorts of people ended up scraping a living on archaeological sites in the mid -’70s. One who crossed my path was a former law student who recounted how a Bill (possibly the one which became the Theft Act 1968) was presented to parliament beautifully crafted by the draftsmen: no stone unturned, no loose ends untied; only to be transformed by those pesky meddling kids on the back benches into what he called “a lawyer’s nightmare” by the time it reached the statute book.
Why isn’t there (or is there supposed to be) a routine whereby a Bill doesn’t get sent up to Buck House for the royal assent until the draftsmen have marked the Honourable Members’ homework and all corrections have been done? I presume that the stylistic nonsense and space-wasting which you rightly deplore would be a less frequent occurrence in those circumstances — so long as the kids on the front bench were alert to the difference between law and politics, between governing and campaigning, and were willing to limit their own pesky meddling.
Geidt resigns
https://www.bbc.co.uk/news/uk-politics-61819747
The Times is reporting today that the government have threatened the DUP that the Bill will not be taken forward to Second Reading unless they allow the NI Executive to be re-established. Which the government already knows they won’t do. This implies two things: (1) your suspicion that the government do not intend the Bill to become law would seem to be spot on and (2) as pointed out in a Twitter exchange between David Hayward and the anonymous Irishman who runs the new “DUP Leader” account, the government’s claim of “necessity” as justification for the Bill becomes even less credible if they choose to delay enacting it. Which is likely to mean that a few backbenchers who might have been willing to vote for it given the figleaf of a spurious legal justification may be less willing if the government has to be open about their breach of international law.
What a mess.
What a mess indeed.
I can certainly believe this Conservative government trying to strongarm the DUP in this way. They may find their clever JCR tactics coming awry: the Unionists in Northern Ireland have been playing this game a lot longer than Boris’s Oxford Union friends have.
Might it help if MLAs were not paid if the Assembly is not able to proceed with business, and/or if executive power is returned automatically to London if an Executive is not formed?
The references, including my own, to Acts which have “overviews” and other sections which do not contain legislative propositions are confined to modern laws. But the concept is much older. Section 2 of the Taxes Management Act 1880 (43 & 44 Vict. Ch 19) states that “This Act is divided into parts, as follows :” after which is a list and description of the 8 (or rather VIII) parts of the Act.
I believe, but only on the authority of my recalling having read it somewhere, that the Bill was drafted by A V Dicey.