Francis Bennion portrait

Home

Human Rights

Law

Politics & Government

Professionalism

Sexual Ethics

Religion & Belief

Poetry Fiction Drama Other

About FB

Google

www this site

SITEMAP

 

ABOUT FB

. . CV

. . Autobiographical

. . Life photos

. . FB's Scrapbook

 

WRITINGS BY FB

. . Chronological

. . Complete list

. . The Bennion Code

. . FB books

. . FB articles etc.

. . FB press letters

. . Book reviews

. . Blogs

. . Archive

. . Acts mentioned

. . People mentioned

 

WRITINGS BY OTHERS

. . Chronological

. . Index

. . Press cuttings

. . Reviews-FB books

. .

OTHER MATERIAL

. . Photograph Album

. . Document list

. . Audio and video

 

Abbreviations

 

 

Note:Francis Bennion sadly died on 28 January 2015.

Contact Webmaster

 

Copyright

Disclaimer

 

Acrobat reader
     

Article in Commonwealth Lawyer

 

17 Com L (August 2008) 76-81

Doc. No. 2008.027

 

 

Page 76

Multilex and Monolex: Aspects of Law Quality

 

How should law be framed? That is a basic question that is not often asked, though it should be. We fuss over detail, but ignore the central picture. In this article I discuss some basic formal considerations which affect the quality of a law. I use “law quality” as a special term to describe standards used when assessing the merits of the form rather than the substance of a particular law.1

 

What do we really want?

 

Before I go any further I should tackle the central question of what form of law do we really want? We need to judge law quality against an ideal. Here I will return to a paper I wrote over 40 years ago. I had just served for 12 years in the Westminster Parliamentary Counsel Office, where all Government legislative drafting is done. Having moved to a different job outside Whitehall I sat back and considered what I had learnt there. The result was that paper, titled “Some suggestions on the form and publication of statute law”.2 Under the heading “What does the user want?” the following appears: “all written law dealing with a particular point should ideally be found in one place . . . the law, in the one place where it is found, will be in its most up-to-date form; that is, incorporating any amendments to the original”.3

 

I returned to this theme of the desirability of “one place law” or what might be termed “monolex” in a 1976 article “Our legislators are CADS”.4 This was about what I called the four vices of statute law: Compression, Anonymity, Distortion and Scatter. The last is a symptom of “multilex” legislative practice. I said in the article that under our legislative procedure the scattering of provisions dealing with one point is inevitable, and offered composite restatement as a remedy. This remedy has not of course been adopted, even though I published an entire book based on it.5

 

In my book Statute Law 6 I pointed out that scatter calls on the statute user to employ the difficult technique of conflating the various relevant texts.7 Where you have scatter or “multilex” the resulting law quality is poor to a greater or lesser extent depending on the degree of scatter in the particular case. There are many different causes of scatter, all avoidable. One is the common device of empowering legislators to enact detailed legislation which is then subject to a requirement that judges shall rule on whether it complies with a constitutional or human rights formula. An early example is the United States Constitution. I now propose to examine at length a recent example of scatter relating to the Human Rights Act 1998.

 

The case of Gordon and Lucy

 

The House of Lords case R v G 8 is about two children whom I will call Gordon (the appellant) and Lucy (the complainant). We are not of course allowed to know their real names. At the time of the incident in question Gordon was 15 and Lucy 12. In a video-recorded interview Lucy said that she had gone to Gordon’s home and into his bedroom where they had chatted and he had then had vaginal intercourse with her even though she said that she did not want this.9 This “had the hallmarks of opportunism”.10 Lucy accepted that she might have told Gordon that she was 15.11

 

Gordon pleaded guilty to the offence of rape of a child under 13, contrary to section 5 of the UK’s Sexual Offences Act 2003. This says that a male commits an offence if, in relation to a child who is under 13, he intentionally penetrates the vagina, anus or mouth of that child with his penis. The gravity of the section 5 offence is shown by the fact that a male aged 10 or over who is convicted of it is liable, on conviction on indictment, to imprisonment for life. Gordon was sentenced to a 12 month detention and training order, reduced on appeal to a conditional discharge. He appealed further to the House of Lords on two grounds, only one of which is relevant to this article, namely that the charge violated his right to privacy

 

Page 77

 

under article 8 (respect for private and family life) of the European Convention on Human Rights. This was alleged to be because it was disproportionate to charge him with rape under section 5 when on these facts he could properly have been charged with a less serious offence under section 13 of the 2003 Act (sex offences committed by persons under 18).

 

Article 8 and Law Quality

 

In R v G the Appellate Committee were divided on the question whether the charge violated Gordon’s right to privacy under article 8. The three who were in the majority answered the question in the negative, so Gordon’s appeal on that ground failed. (It also failed on the other ground, and the conviction and reduced sentence stood.) This three to two split among the Law Lords illustrates the obscurity of the language of article 8. Along with the multilex point, it raises questions of law quality, which I will now examine. I have written extensively on this subject elsewhere.12

 

Article 8 is titled “Right to respect for private and family life”. Clause 1 states that “Everyone has the right to respect for his private and family life, his home and his correspondence”. Clause 2 says:

 

“ There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

 

This is intended to be the statement of a law, or perhaps I should say a quasi-law. But in combination with the force given to it in Britain by the Human Rights Act 1998 it may properly be characterized as a full law. Let us try to look at it with fresh eyes, as if we had never seen it before and it had no history. Would we think it really looked like a law, standing alone? As originally promulgated it has no accompaniment except the preamble to the Convention, which adds nothing to its legal meaning.

 

For a law, the language of clause 1 is very odd. Why “respect”? What juridical effect is it meant to have to say that everyone has the right to respect for his private life? We must infer that it means his or her private life. Suppose he or she leads a thoroughly immoral, even criminal, private life - is it still entitled to “respect”? What exactly does the entitlement to respect require of the high contracting party in question (for the Convention is, we gather, only intended to bind the states that acceded to it)? These are matters of pure speculation, only to be answered by the officials appointed for the purpose, the judges of the European Court of Human Rights at Strasbourg. Later it was laid down by the Human Rights Act 1998 they had also to be answered by British judges required to “take into account” any relevant judgment, decision, declaration or advisory opinion of the Strasbourg court and opinion or decision of the European Commission of Human Rights.13

 

As one might expect, the curious term “respect” in article 8 has not fazed the best of British judges, for example Lord Bingham of Cornhill. He confidently said of article 8:

 

“The content of this right has been described as ‘elusive’ and does not lend itself to exhaustive definition. This may help to explain why the right is expressed as one to respect, as contrasted with the more categorical language used in other articles. But the purpose of the article is in my view clear. It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose.”14

 

The purpose of article 8 may be clear to Lord Bingham, composing his thoughts after half a century of elucidation by the Strasbourg court. His description of it does not seem to me to be very clear, considering that it is meant to be a law and laws are required to be “certain”. A law that is uncertain is to that extent a bad law. Let us look more deeply into this aspect.

 

Laws are required to be certain

 

Under the regime in France before the revolution the king could, by a secret letter or lettre de cachet, arbitrarily sentence a subject to imprisonment without trial for any offence, or fancied offence, he chose. In England, until the common law courts intervened, the Council of the North, an institution of government established in exercise of the royal prerogative by Henry VIII, operated under and enforced similar secret instructions from the king. Condemning this, Coke cited the maxim misera est servitus, ubi jus est vagum aut incertum (obedience is a hardship where the law is vague or uncertain).15

 

The common law insists on certainty in the law, since if law is not certain it is to that extent not known. Lord Diplock said:

 

“Unless men know what the rule of conduct is they cannot regulate their actions to conform to it. It fails in its primary function as a rule.”16

 

Page 78

 

In other words its law quality is poor. For the law not to be known is the ultimate injustice. In the common law courts it was early observed that: “certainty is the mother of repose, and incertainty (sic) is the mother of contention”.17 Sir William Blackstone said:

 

“. . . since the respective members [of the state] are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will.”18

 

In modern democratic countries we believe that such directions are to be given not arbitrarily by lettres de cachet, but by clear rules democratically laid down in advance. Only if the state of the law on any point is obvious and manifest can people be sure it will not be manipulated to their disadvantage. What is publicly known cannot be privately altered. Locke said that the legislature must govern “by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court, and the countryman at plough”.19

 

Many examples could be given. Here is one expounded by Lord Brightman regarding the need to be able to rely on the certain operation of Limitation Acts:

 

“When a period of limitation has expired, a potential defendant should be able to assume that he is no longer at risk from a stale claim. He should be able to part with his papers if they exist and discard any proofs of witnesses which have been taken, discharge his solicitor if he has been retained, and order his affairs on the basis that his potential liability has gone.”20

 

The reason for this was explained by Lord Hope of Craighead in a later case:

 

“Witnesses may have died, memories may have become dimmed and relevant documents may have been destroyed or lost. As time goes on these effects may become less easy to detect, and this in itself is apt to produce injustice. Times change too, and conduct which may seem reprehensible today may have been regarded as acceptable or even as normal many years ago. So, as McHugh J said in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, 553, the public interest requires disputes to be settled as quickly as possible.”21

 

Of course the requirement calls for reasonable certainty: far-fetched objections will not be entertained.22

 

The essence is the good citizen’s peace of mind. Being law-abiding, he or she can trust in remaining untroubled by the law. Trustfulness is misguided where the law is not known, for then it cannot be known whether the law has been observed. If the law is both known and certain it is predictable. Those affected by it can foresee how the court will apply it, and arrange their affairs accordingly. The American Justice Oliver Wendell Holmes Jnr. went so far as to suggest that this predictability was the very essence of law. He said: “The prophecies of what the courts are likely to do in fact and nothing more pretentious are what I mean by the law”23

 

The rule of law itself depends on this predictability. Lord Diplock said:

 

“The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.”24

 

The same principle of legal certainty applies to European Community law. The principle has been called a pillar of the European Union25 and has been applied since the early days of the EEC. The Court of Justice of the European Communities has ruled that overriding considerations of legal certainty preclude legal situations which have exhausted all their legal effects in the past from being called in question where that might upset existing schemes retroactively.26 The drafting of an EU legislative act is required to be “precise, leaving no uncertainty in the mind of a reader”.27

 

As one would expect, the principle of legal certainty also applies to the European Convention on Human Rights. It has been said that the principle is common to all the articles of the Convention and is “a basic building block of Convention jurisprudence”.28 It is unfortunate that the principle does not

 

Page 79

 

apply, in fact as well as theory, to the actual wording of the Convention.

 

Back to Gordon and Lucy

 

I suggested above that, because the House of Lords decision in R. v G. demonstrates that article 8 is uncertain, it shows it up to be bad law in a formal sense. In other words, its law quality is poor. The same applies to many other articles of the Covenant, and indeed to the various similar loosely-drafted treaties that now bind us. For example article 31 of the United Nations Convention on the Rights of the Child says:

 

“1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

 

2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.”

 

This is too loosely drawn to be a true legal right. Is it then meant to be simply a moral right? I suggest it is too loosely drawn even for that, and is virtually meaningless.

 

Now I want to investigate the reasons why in R. v G. the Law Lords found it so difficult to agree on the legal meaning of article 8. The three who held that Gordon’s right of privacy under article 8 was not violated were Lords Hoffmann and Mance and Lady Hale. The two dissentients were Lords Hope of Craighead and Carswell.

 

Lord Hoffmann gave the certified question for the Law Lords as being:

 

“Is it compatible with a child’s rights under article 8…to convict him of rape contrary to section 5…in circumstances where the agreed basis of plea establishes that his offence fell properly within the ambit of section 13…?”

 

Lord Hoffmann roundly said that, because the case had nothing to do with article 8 or human rights, he would say yes to the question. He said that prosecutorial policy and sentencing do not fall under article 8, and that it would be remarkable if article 8 gave Strasbourg jurisdiction over sentencing for all offences which happen to have been committed at home. He then mentioned two Strasbourg decisions where the length of sentences was regarded as relevant, but dismissed them because the judgments had given no reasons for this. He added that R. v G. was “another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights”.

 

Lord Hope took issue with Lord Hoffmann:

 

“I cannot accept Lord Hoffmann’s proposition that the Convention rights have nothing to do with prosecutorial policy. How an offence is described and the range of sentences that apply to it are matters for the contracting state. But where choices are left to the prosecutor they must be exercised compatibly with the Convention rights. The questions then are whether the appellant’s continued prosecution for rape under section 5 was necessary in a democratic society for the protection of any of the interests referred to in article 8(2), and whether it was proportionate.”

 

It was agreed by their Lordships that the proportionate test applied under article 8; the argument simply being on whether the test was satisfied. Yet the wording of article 8 says nothing whatever about a proportionate test. It is an invention of European judges, one of many in this field. Lord Hope’s conclusion was:

 

“I would hold that it was unlawful for the prosecutor to continue to prosecute the appellant under section 5 in view of his acceptance of the basis of the appellant’s plea which was that the complainant consented to intercourse. This was incompatible with his article 8 Convention right, as the offence fell properly within the ambit of section 13 and not section 5.”

 

Lady Hale found another important component in article 8 that had not been stated expressly:

 

“I feel it necessary to add a few words of my own. I do so in the light of the well-known observations of the European Court of Human Rights in the case of X and Y v The Netherlands (1986) 8 EHRR 235, 239, at paras. 22 to 27, that there are positive obligations inherent in an effective respect for private and family life. These may require the criminal law to provide effective protection for those who cannot protect themselves from the sexual attentions of others, as well as requiring the state to abstain from arbitrary interference in the sexual lives of individuals.”

 

The dissenting Lord Carswell, who believed Gordon’s article 8 rights had been violated, raised another point that requires discussion. Having asked whether it was right in the circumstances of the case for the Crown to continue the prosecution on the basis of section 5 of the 2003 Act, rather than substituting one based on section 13, he went on:

 

“I agree with your Lordships that the Crown are not to be criticised for framing the charge in the first place under section 5, for on the allegations made by the complainant this was a true case of rape within that section. When the basis of the plea was finally settled, however, it was time for the Crown and the court to consider whether it was appropriate to continue to prosecute the appellant under section 5. I am of the opinion, in agreement with my noble

 

Page 80

 

and learned friend Lord Hope of Craighead, that it was not so appropriate.”

 

The point here is that under the British constitution it is for the independent prosecuting authorities, acting under the supervision of the Attorney General, to decide in any case whether it is appropriate to prosecute, and if so under what charge. The human rights regime to which we are now subjected strives to usurp this important independent authority, which has been won through many battles with politicians who have wished to take it in charge. I have written on that topic before in these pages.29

 

Trapped in multilex obscurity

 

We see that Gordon and his legal advisers were trapped in what may be termed multilex obscurity. The law governing that exploitative incident in Gordon’s bedroom was to be found not in one place but several. Its content was so obscure that it defeated five Law Lords.

 

The multilex nature of the relevant law can be briefly described in this way. To examine the nature of Gordon’s alleged criminal offence it was necessary to look at the relevant provisions of the Sexual Offences Act 2003, a measure of 143 sections and seven Schedules, together with relevant decided cases on the Act. Also in play were a number of ancillary enactments and common law rules relating to general principles of criminal law. To examine the human rights aspects it was necessary to look at the European Convention on Human Rights, with (as we have seen) any relevant judgment, decision, declaration or advisory opinion of the Strasbourg court and opinion or decision of the European Commission of Human Rights, together with the Human Rights Act 1998 and case law on that measure. In addition it is necessary to count in relevant juristic texts, that is books, articles and other commentaries bearing on the issues at stake. A formidable array for the exercise of the arts of collation.

 

In considering obscurity we look particularly at certain difficult provisions of the 2003 Act together of course with article 8 of the Convention. Regarding the Act we may pick out the gnomic definition of the key term “sexual”, on which I have written at length.30 There is also the fact that there were two different sections under which Gordon might have been charged, one grave and the other less so. It would reduce the problem of scatter to adopt a drafting rule that there should not be two or more different offences covering the same factual situation.

 

The multilex problem might have been greater if it were not for two advantages that might not have been available. One is that the governing Act was recent and all-embracing. The other is that the previous system of indirect or non-textual amendment, severely criticised in my book Statute Law 31 as productive of scatter, has largely been abandoned in the UK.

 

Form or substance?

 

A thought that may have been forming in the mind of a reader who has followed the argument so far is this: surely substance trumps form? Are we really to be deprived of the social benefit of protecting human rights because of formal defects in the quality of necessary legislation?

 

It is a fair question. I would answer it by saying that bad law quality has serious social consequences in itself. Wherever it exists it causes uncertainty in the law. Its prevalence means that it is not safe for citizens, who cannot be excused because of ignorance of the law, to rely on reading the law for themselves without professional assistance. It causes problems even to the legal profession. Judges of the highest ability frequently disagree as to the legal meaning of a particular enactment or the content of a common law rule.

 

A further answer is that there is no proof that we must inescapably suffer law that is bad from a formal point of view. In this article I have concentrated on one aspect only, that relating to human rights. But bad law infects every area of our law. I have concentrated on multilex systems as opposed to the preferred monolex. But there are many other types of bad formal law. We need not suppose that vital social concerns can be protected only by the type of bad quality law to which sadly we are accustomed.

 

This carries us deep into constitutional and political aspects. Who should really decide what the substance of our laws should be? If we are a democracy should it not be the elected legislature? Yet what happens is that the elected legislature decides, and then the unelected judiciary second guesses those decisions.

 

A final point is this. When it comes to law, a surprising gap exists in our learning. The vital topic of law quality, in the sense used in this article, is neither researched or studied. There is no expertise in that area, and therefore no guidance for the authorities. Here is an opportunity.

 

Postscript

 

I had just finished drafting the above when news came through of a further decision which needed to be noticed. It was Eady J’s judgment in the sensational lawsuit Mosley v News

 

Page 81

 

Group Newspapers Ltd,32 another article 8 case. The successful claimant was Max Mosley, son of the notorious fascist leader Sir Oswald Mosley and President of the Fédération Internationale de l’Automobile. He sued News Group Newspapers Ltd. as publishers of the News of the World, complaining of an article about his private sado-masochistic sexual activities published under the headline “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS”. The case presents another aspect of the obscurity of article 8, arising from the need to balance its effect with the free speech requirements of article 10 of the Convention. Eady J said:33

 

“In order to determine which [article] should take precedence, in the particular circumstances, it is necessary to examine the facts closely as revealed in the evidence at trial and to decide whether (assuming a reasonable expectation of privacy to have been established) some countervailing consideration of public interest may be said to justify any intrusion which has taken place. This is integral to what has been called ‘the new methodology’: Re S (A Child) [2005] 1 AC 593 at [23].”

 

Eady J said it was “not simply a matter of ‘unaccountable’ judges running amok”.34 He cited35 a Council of Europe resolution36 which said “the right to privacy afforded by article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media”. The remedy is an award of damages, and Eady J fixed on the figure of £60,000. He rejected a plea for exemplary damages. It remains to be seen how his judgment will be regarded by higher courts if the matter goes to appeal. We may well have another House of Lords disagreement on the legal meaning of the Convention.37

 

------------------------

 

1. This article is one of a number the author is writing in connection with his forthcoming book Law Quality: A Neglected Topic.

2. For the text of the paper see www.francisbennion.com/1966/001.htm.

3. See para. 3.1 and 3.2.

4. See www.francisbennion.com/1976/001.htm.

5. The book concerned the Consumer Credit Act 1974 and delegated legislation made under it. For a description of composite restatement as used in the book see F. A. R. Bennion, Statute Law (3rd edn, 1990) pp. 334-340, 346-349; www.francisbennion.com/1990/002/ch23.htm; www.francisbennion.com/1990/002/apb.htm.

6. For the text of Statute Law (3rd edn, 1990) see www.francisbennion.com/1990/002.htm.

7. See p. 212.

8. [2008] UKHL 37, [2008] 3 All ER 1071.

9. Report, para. 50.

10.Report, para 33, per Lord Hope of Craighead.

11. Report, para. 51.

12. See eg “Human Rights: a Threat to Law?” (2003) 26(2) UNSWLJ pp. 418-441, www.francisbennion.com/2003/008.htm.

13. Human Rights Act 1998 s. 2(1).

14. R (on the application of Countryside Alliance and others) v Attorney General and another [2007] 3 WLR 922, [2007] UKHL 52, at [10].

15. 4 Co Inst 246.

16. Lord Diplock, “The Courts as Legislators” (address to the Holdsworth Club of the University of Birmingham, 1965) p. 16.

17. Stowel v Lord Zouch (1569) 1 Plowd 353, per Serjeant Carus, arguendo.

18. William Blackstone, Commentaries on the Laws of England (Oxford: The Clarendon Press, 1st edn, 1765–1769) i 52–53.

19. Of Civil Government (1924 edn), p. 189.

20. Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 563.

21. Bowden v Poor Sisters of Nazareth & Ors (Scotland) [2008] UKHL 32 at para. 5. In the Australian case cited McHugh J gave “the most helpful discussion of the policy of the limitation statutes” (para. 23).

22. Tabernacle v Secretary of State for Defence [2008] EWHC 416 (Admin) at para. 21.

23. “The Path of the Law”, Collected Legal Papers 173.

24 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591 at 638.

25. See R (on the application of L and another) v Secretary of State for the Home Department and another [2003] EWCA Civ 25, [2003] 1 All ER 1062, per Lord Phillips of Worth Matravers MR at [17].

26. Barber v Guardian Royal Exchange Assurance Group (Case C-262/88) [1990] ECR I-1889 at 1956 (para 44).

27. Guide to the European Parliament, the Council and the Commission, Guideline 1, para. 1.1.

28. Philip Plowden and Kevin Kerrigan, Advocacy and Human Rights: using the Convention in Courts and Tribunals (Routledge Cavendish, 2002), para. 1.5.4. See R v Misra and another [2004] EWCA Crim 2375 at para. 30.

29. See F A R Bennion, “Separation of Powers in Written and Unwritten Constitutions”, 15 The Commonwealth Lawyer (April 2006) 17, www.francisbennion.com/2006/015.htm.

30. See F A R Bennion, Sexual Ethics and Criminal Law: A Critique of the Sexual Offences Bill 2003 (2003), paras. 55-58, www.francisbennion.com/2003/001.htm.

31. See F A R Bennion, Statute Law (3rd edn, 1990), pp. 228-229.

32. [2008] EWHC 1777 (QB).

33. At para. 11 (the emphasis is Eady J’s).

34. Para. 7.

35. At para. 126.

36. Resolution 1165 of 1998, para. 12. It is extraordinary that, on an important question regarding the legal meaning of article 8, account should be taken of this resolution, which is not among the sources specified in the Human Rights Act 1998 s. 2(1) mentioned above.

37. Francis Bennion is the author of Bennion on Statutory Interpretation (5th edn 2008), Statute Law (3rd edn 1990) and other legal books, articles etc. A former UK Parliamentary Counsel and member of the Oxford University Law Faculty, he is currently a Research Associate of the Oxford University Centre for Socio-Legal Studies.