Category: Legislation and Law-Making

Can anything actually be done to improve parliamentary scrutiny?

18th May 2023

Over at The House Magazine – in effect, parliament’s in-flight magazine – there is a thoughtful and informative article by Dr Alice Lilly entitled The Slow Death of Parliamentary Scrutiny.

One merit of her piece is that is looks at other long-term and structural reasons for the difficulties parliament have in scrutinising draft legislation – that is, other than the obvious one that any government does not want to be scrutinised.

And although ministers and their media supporters often play-act about the undemocratic House of Lords, it is plain that the government is increasingly relying on the upper house to save the government from itself in the legislative process.

Peers are now doing the tidying up of bills that really should be done before legislation is even presented to parliament.

And, in turn, departments, are seeking to shove more through by means of unscrutinised secondary legislation.

In essence: the House of Commons is becoming an ornament – though not a pretty one – rather than an instrument of the state.

But.

Although the problem can be stated, it is less clear what – if anything – could be the solution.

Scrutinising legislation is dull, thankless work – and so, unless it is made a well-resourced priority for active members of the the House of Commons, then the natural tendency will be for politicians to do other things.

And one can take for granted that ministers (of any party) and officials will seek to avoid scrutiny if they can.

Abolishing – or restricting – the House of Lords would cause more problems, unless such a change was part of a broader package of fundamental parliamentary reform.

The current situation is far from ideal – and it may be unsustainable: for there is only so much one can expect from members of the House of Lords.

Yet unless Members of Parliament make scrutiny of legislation a priority – and insist to ministers and departments that enough time is provided for scrutiny, and also insist on there being proper resources in place for that scrutiny – then it may be we have a worsening problem without any likely solution.

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Why [x] should be regulated.

17th May 2023

Concerns about the implications of [x] have led to calls for it to be regulated.

In a “nightmare scenario” one leading politician has said that “[x] could get out of control” with “unimaginable consequences”.

The politician added that they had read reports about [x] and that “something really should be done”.

“Why is the government not doing something about [x]?  Doesn’t the government care?”

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“Doesn’t the government care?”

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An official spokesman rejected the allegation that the government does not care about [x] and commented that “all options remain open, including regulation and even prohibition”.

Surveys show that members of the public when asked if “x should be regulated?” generally say that it should be regulated, unless those members of the public are asked if “[x] should be banned?”, and then they say it should be banned instead.

“Whatever [x] is,” said one person in a vox pop, “it shouldn’t be allowed.  And what about the children?”

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“What about the children?”

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Independent observers said that [x] is not capable of being defined, let alone regulated or prohibited, and dismissed concerns as “being responses to loaded questions” but they also admitted fearing that their observations would be relegated to a long paragraph towards the end of this article which few would actually read.

Supporters of [x] yesterday refused to be interviewed for this article, commenting instead by email that whatever they said would be relegated to the end of this article, coming after and before what they said would be “scaremongering”.

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“Scaremongering”

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The final word must go to the politician who called for regulation of [x] who also said “[x] should now be allowed,” when asked with a differently framed question, adding “there is too much red tape”.

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“Frankenchickens” and the law

3rd May 2023

Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:

As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.

What is being described as a “Frankenchicken”?

According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste.  We should not be treating animals like this.”

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The applicant – The Humane League – was kind enough to share their legal arguments with me.

At the heart of this legal case is a paragraph.

It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.

And this paragraph 29 provides:

“29.  Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”

(My emphasis added, for a reason which will become obvious.)

The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:And these regulations were made under section 12 of the Animal Welfare Act:

It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.

The applicant in this case is contending the government misunderstands paragraph 29.

The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.

The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.

(I do not have access to the government’s legal argument.)

The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.

First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.

And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.

The applicant’s press release sent to me states:

“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.

“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.

“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.

“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”

This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.

This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.

And this is a perfectly proper thing for a court to be asked to do.

The court is not being asked to directly quash any policy, but to say what a legal provision means.

And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.

It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.

This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.

The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.

That is an ambitious case to make, but again it is a legitimate and arguable one.

If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.

According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.

A spokesperson is quoted as saying:

“We are proud to have some of the highest animal welfare standards in the world.  All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.

The hearing is today and tomorrow.

I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.

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You can read more on the Humane League’s campaign here.

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Why Raab’s frontal attack on the Human Rights Act failed, and why the Home Office attack on human rights law is succeeding

25th April 2023

One big error by the former Lord Chancellor Dominic Raab was how he went about dealing with human rights law.

Raab insisted on outright repeal of the Human Rights Act 1998, and nothing else.

As this blog has previously averred, the Act was the Moby Dick to his Captain Ahab.

The Act had to go.

And this approach failed, even from an illiberal perspective.

For the Human Rights Act 1998 is still there, and Raab is not.

A more effective approach from an illiberal perspective is not the full repeal of the Act, but to slowly bit-by-bit reduce its effect and restrict its scope.

Take this simple clause 1(5) from the Illegal Migration Bill:

That is all that needs to be done.

For the Human Rights Act 1998 is only a statute, and what one statute provides another can take away.

The Act does not, from an illiberal perspective, need to be repealed: it can instead be subjected to dozens of similar “notwithstanding” clauses, in new legislation and amending old legislation.

There is no point in saying: don’t tell the government this!

Those in the government already know – that is why the Home Office lawyers have put that clause in the Bill.

They do not need Raab’s cavalry charge of full repeal: they can be more effective operating on the flanks, picking off targets as they choose.

Of course, if the government goes too far there may, perhaps, be an adverse adjudication by the European Court of Human Rights on such legislation.

But that would be a cost of government business, sometime down the road, and not something to prevent putting in such clauses now.

And the pushback against such clauses will be harder than defending an entire Act from repeal.

The government can and will be more savvy in its illiberalism.

And this is far more concerning, from a liberal perspective, than Raab’s futile whale-hunt.

The Human Rights Act 1998 may now be safe from repeal, but the reach of human rights law in primary legislation is certainly not safe from attack.

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The significance of the resignation of Dominic Raab

21st April 2023

The end, when it came, was not pretty.  But then again, endings rarely are.

The resignation letter was extraordinary:

The impression was that the letter was drafted in a rush – the sort of draft one would put together to get something out of one’s system, before composing something more measured.

The letter was accompanied by a 1,100 word piece in the Telegraph which was published eighty-or-so minutes later:

As a published article, it presumably would have been commissioned, edited and lawyered before publication – and so it may have been written before the letter.

But it said much the same.

One remarkable thing was that both the letter and the published article were in the public domain before the actual report – presumably to “frame the narrative” as a political pundit would put it.

And then the report was published:

And it became obvious why Raab was so anxious to “frame the narrative”– as parts of the report were, as a lawyer would put it, “adverse”.

This did not seem to be the usual, coordinated exchange of letters with a prime minister, which one would expect with such a senior resignation.

Instead, it looked a mess.

And one can only wonder about how this mess relates to the unexpected delay from yesterday, which was when the report was expected to be published and the prime minister was expected to make a decision.

What seems plain, however, is that Raab was pressed into a resignation.

If so, there is a certain irony, as it was the threatening of unpleasant outcomes to people who did not comply with his wishes/demands which was the subject matter of some of the complaints.

It therefore appears that Rishi Sunak was more skilful in this cost-benefit power-play than Raab.

In his resignation letter, Raab twice warns of the “dangerous” outcome if he did not get to continue on his way.

But in practice, Sunak by being silent and not “clearing” Raab yesterday placed Raab in an increasingly difficult situation, where it was becoming obvious even to Raab that unless he resigned he would be sacked.

Some may complain that Sunak “dithered” – but another analysis is that this former head boy and city banker patiently out-Raabed the school-cum-office bully.

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Beginnings, like endings, are also often not pretty.  And rarely are they ideal.

But, at last, the Ministry of Justice is free from perhaps the worst Lord Chancellor of modern times.

(Yes, worse even than Christopher Grayling or Elizabeth Truss.)

Over at his substack, Joshua Rozenberg has done an outstanding post on why – in substantial policy and administrative terms – Raab was just so bad.

And on Twitter, the fine former BBC correspondent Danny Shaw has also detailed the many failings in this thread:

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The Ministry of Justice is in an awful state.

The departing minister’s obsession with prioritising symbolic legislation such as the supposed “Bill of Rights” and a “Victims” Bill – which mainly comprises the shallow sort of stuff too often connected to the word “enshrining” – was demonstrative of the lack of proper direction for the ministry.

And it is significant that it was only during the interruption of the Truss premiership, with a new (if temporary) Lord Chancellor that the barristers’ strike was resolved.

Joshua Rozenberg sums up that telling situation perfectly:

“We saw an example of Raab’s indecisiveness in the way handled the strike by criminal defence barristers last summer. Increasing delays — caused initially by government-imposed limits on the number of days that judges could sit — were rapidly becoming much worse.

“Raab seemed like a rabbit frozen in the headlights, unable to decide which way to turn. The problem was solved by Brandon Lewis, who replaced Raab for seven weeks while Liz Truss was prime minister. He simply paid the barristers some more money.

“It was not so much that Raab was ideologically opposed to making a pay offer. On his return to office, he made no attempt to undermine the pay deal reached by Lewis. It’s just that he seemed unable to take a decision.”

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Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

And the grunt-work of actually administering our courts and prisons and probation service can take place.

That grunt-work will also not be pretty, and the incoming Lord Chancellor will not get easy claps and cheers that come with attacking “lefty” lawyers and “woke” judges.

But a new start can be made, and all people of good sense should wish the new Lord Chancellor well.

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The failure of Brexit to return real power to Westminster: a worked example

16th March 2023

Yesterday this blog averred that Brexit so far has been about giving power to Whitehall than giving power to Westminster.

Ministers since 2016 have been using the rhetoric of “taking back control” so as to make government less accountable to parliament.

And today: a worked example:

You may have strong views about Brexit, and you may have strong views about the Windsor Framework.

(This blog has set out why, although the Windsor Framework is a Good Thing, the supposed ‘Stormont Brake’ is more likely to be an ornament than an instrument.)

Yet sensible people would want the Windsor Framework to be be properly considered and scrutinised by parliament.

For that is what sovereign parliaments should be able to do.

But, no.

The government is not giving parliament any adequate opportunity to examine the Windsor Framework.

This is more government by fiat, by ministerial decision.

You may think that is a Good Thing: that our government should be all-powerful between general elections with no or almost no accountability to parliament.

But, if so, do not pretend to others that Brexit was ever about giving power back to the Westminster parliament.

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Whitehall is the new Brussels – and Westminster is as weak as ever

15th March 2023

There are many things which were not true about Brexit.

Brexit was never going to be quick and easy: indeed, we were still this year re-negotiating the exit deal.

Brexit was never going to lead to a rush of new free trade deals.

Brexit was never going to make it easier for the United Kingdom to control its borders.And Brexit was not about reclaiming sovereignty: we had sovereignty all along, and that is how we were able to make the Article 50 notification.

But the untruth about Brexit which perhaps is the most irksome from a law and policy perspective is that it was about the Westminster parliament (re)gaining power from Brussels.

For what has happened instead is that Whitehall – that is ministers and civil servants – used Brexit as a pretext for its own power-grab.

There is a version of Brexit – unrealistic, of course – where parliament is given maximum powers over new trade deals and where parliament decides on a case-by-case basis which of the retained European Union laws it keeps or replaces.

A Brexit which was used to empower Westminster and our democracy.

In some ways – and this will annoy some of you – that would not have been a bad Brexit.

But the rhetoric of “taking back control” instead cloaked an increase in discretionary and unaccountable power by the government.

The Westminster parliament seems as powerless as ever against the executive.

Whitehall has become the new Brussels.

And we may have to “take back control” all over again.

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Legislation as an annual or biennial virility event

8th March 2023

In times past, communities used to come together every year or so to assert and celebrate rebirth and virility.

Nowadays, our politicians do something similar – although instead of costumes and spectacles they pass legislation.

Consider these two lists.

First, here are the Acts of Parliament since 2000 which have migration/immigration/borders/nationality in their short title:

This list, of course, excludes statutory instruments and other legislation that may have amended the law on migration and related aspects.

But it is about an Act every other year.

And here is a second list, of primary legislation since 2000 with terrorism or “investigatory powers” in the title:

Again, an Act of Parliament on average every couple of years or so.

Amusingly, our legislature cannot make its mind up whether the statutes should be title “terrorism” or “anti-“ or “counter-terrorism”.

(Perhaps one reason we have so many is because they keep cancelling each other out.)

Taking the two lists together, this means that the Home Office has had since 2000 about an Act every year on immigration or national security, or both.

An annual (biennial) legislative event which shows the Home Office is doing something.

We are told this year, like before, that the migration-related Bill is needed to solve the perceived borders issue.

We are told that those against this latest Bill are against the national interest:

One suspects similar sentiments could have been expressed (and indeed were) about those who may have had reservations about each of the previous Bills on borders and/or national security since 2000.

And like an addict, the Home Office will say in 2024 and 2025 that just some more Bills will be needed to show how serious we are about borders and/or national security.

Perhaps one day the Home Office will think it has enough legislation in place on borders and/or national security.

But until that happy day, Home Office ministers will pass a new Act every year or so to show that they are virile and that they are doing things.

Then they will hope we will forget the alarmism so that they can do it all over again in the next year or two.

The legislation will accumulate on the statute book, with different variations of the same few words in the titles.

Until perhaps they are all one day consolidated in a Terrorism, Anti-Terrorism, Counter-Terrorism, Borders, Migration, Immigration and Nationality Act.

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The Illegal Migration Bill is about political theatre, not serious law-making

 7th March 2023

Today we were supposed to see the government’s new Illegal Migration Bill.

According to today’s Order Paper, the Bill was to be presented to Parliament:

A minister told peers that the Bill was to be introduced today:

And there was even a Commons statement by the Home Secretary.

But.

There is no Bill – at least by mid-afternoon today.

This is odd.

That there is a delay was indicated by part of the Home Secretary’s statement:

“Mr. Speaker, I won’t address the bill’s full legal complexities today.  Some of the nation’s finest legal minds have been – and continue to be – involved in its development.”

And why would the “nation’s finest legal minds” still be “developing” something which was supposed to be published today?

The ministerial letter above provides a possible explanation:

Section 19 of the Human Rights Act 1998 provides:

Nothing much of legal significance turns on section 19 statements either way – whether a minister views a Bill’s provisions as compatible or otherwise.

The lack of a compatibility statement will not make a statutory provision breach the ECHR, and the presence of a compatibility statement will not save a statutory provision from being found incompatible.

Section 19 is an ornament not an instrument.

Lord Hope in a 2001 House of Lords case said the following about one such statement of compatibility (emphasis added):

“It may be noted in passing that a statement of compatibility was attached to the Bill before second reading that its provisions were compatible with the Human Rights Act 1998. Statements to that effect are now required by section 19 of the Act, which was brought into force on 24 November 1998. But Mr Pannick QC for the Secretary of State did not seek to rely on this statement in the course of his argument. I consider that he was right not to do so. These statements may serve a useful purpose in Parliament. They may also be seen as part of the parliamentary history, indicating that it was not Parliament’s intention to cut across a Convention right […]  No doubt they are based on the best advice that is available. But they are no more than expressions of opinion by the minister.  They are not binding on the court, nor do they have any persuasive authority.“

That was just after the Human Rights Act was passed – but it is pretty much the conventional wisdom of the courts and practitioners on such statements.

Of course, ministers will want to assure waverers in the Commons and the Lords that this is not yet another piece of legislation which will break international legal obligations.

More concerning will be the substance of the Bill, which may face heavy amendment in the Lords and litigation in the Courts.

But we cannot know what the Bill says, as it has not been published.

What we do know, in addition to the Home Secretary’s statement (and ignoring the media briefing) is this from the Order Paper:

And this on the Home Office website:

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The emphasis on media briefing for this Bill indicates that these proposals are more to do with political theatre, not law-making.

For the one thing which would do the most to stem any abuses of our asylum regime would be to have an adequately resourced and competent asylum system.

And until and unless we have an adequately resourced and competent asylum system, then everything else proposed by this government on asylum is hogwash.

The impression this Bill gives is that the government is not engaged in serious policy making and legal implementation, and it wishes to use its remaining months in office to play to various galleries and to evade any blame.

And this can be done by leaks, briefings, announcements and press releases – again, political theatre – with any actual legislation an afterthought.

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STOP PRESS

The Bill has now been published.

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Why the appointment of Sue Gray is both a mistake and not a mistake

6th March 2023

The senior civil servant Sue Gray has been appointed by the leader of the opposition as his chief of staff.

This, as you no doubt are aware, is the stuff of political controversy – not least because of Gray’s famous (infamous?) role in compiling the Partygate internal report.

From a policy perspective, however, is this controversial appointment a mistake?

Tactically and politically the appointment is an error.

It raises questions of propriety and timing for the leader of the opposition, and it opens up the  question of whether her role in the Partygate report was politically motivated.

It also distracts from any focus on the wrongdoing of Boris Johnson over Partygate.

But.

Strategically and governmentally the appointment is sensible.

If the leader of the opposition becomes prime minister then he needs aides who (genuinely) know the Whitehall machine, who are used the glare of the media, and who are unafraid of speaking truth to power, or at least to Prime Ministers.

As such Gray’s appointment can be compared to that of Margaret Thatcher’s aides, the recently deceased Bernard Ingham and Charles Powell, and Tony Blair’s appointment of Jonathan Powell.

Such appointments are a mark of taking government and policy seriously.

The timing of the appointment is dreadful, and it may be politically counterproductive in March 2023, but it may look less problematic if Labour win the next general election.

And in the run up to the next election, it means the party (currently) most likely to win that election will have guidance which enable it to better prepare for the realities of implementing manifesto promises and translating policy into practice.

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