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Article in Commonwealth Lawyer
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Com L (August 2008) 76-81
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Doc. No. 2008.027 |
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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.
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”. 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”.
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”. 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.
In my book Statute Law I
pointed out that scatter calls on the statute user to employ the difficult
technique of conflating the various relevant
texts. 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 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. This “had
the hallmarks of opportunism”. Lucy
accepted that she might have told Gordon that she was 15.
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
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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.
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.
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.”
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).
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.”
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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”. 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.”
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”.
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.”
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.”
Of course the requirement calls for reasonable certainty: far-fetched objections
will not be entertained.
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”
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.”
The same principle of legal certainty applies to European Community law.
The principle has been called a pillar of the European Union 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. The
drafting of an EU legislative act is required to be “precise,
leaving no uncertainty in the mind of a reader”.
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”. It is unfortunate that the principle
does not
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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
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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.
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. 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 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, 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:
“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”. He
cited a Council
of Europe resolution 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.
------------------------
This
article is one of a number the author is writing in connection with his
forthcoming book Law Quality: A Neglected
Topic.
For
the text of the paper see www.francisbennion.com/1966/001.htm.
See
para. 3.1 and 3.2.
See
www.francisbennion.com/1976/001.htm.
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.
For
the text of Statute Law (3rd edn, 1990) see www.francisbennion.com/1990/002.htm.
See
p. 212.
.
[2008] UKHL 37, [2008] 3 All ER 1071.
Report,
para. 50.
Report,
para 33, per Lord Hope of Craighead.
Report,
para. 51.
See
eg “Human Rights: a Threat to Law?” (2003) 26(2) UNSWLJ pp.
418-441, www.francisbennion.com/2003/008.htm.
Human
Rights Act 1998 s. 2(1).
R
(on the application of Countryside Alliance and others) v Attorney General
and another [2007] 3 WLR 922, [2007] UKHL
52, at [10].
4
Co Inst 246.
Lord
Diplock, “The Courts as Legislators” (address to the Holdsworth
Club of the University of Birmingham, 1965) p. 16.
Stowel
v Lord Zouch (1569) 1 Plowd 353, per Serjeant Carus, arguendo.
William
Blackstone, Commentaries on the Laws of England (Oxford: The Clarendon
Press, 1st edn, 1765–1769) i 52–53.
Of
Civil Government (1924 edn), p. 189.
Yew
Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 563.
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).
.
Tabernacle v Secretary of State for Defence [2008] EWHC 416 (Admin) at
para. 21.
“The
Path of the Law”, Collected Legal Papers 173.
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg
AG [1975] AC 591
at 638.
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].
.
Barber v Guardian Royal Exchange Assurance Group (Case C-262/88) [1990]
ECR I-1889 at 1956 (para 44).
Guide
to the European Parliament, the Council and the Commission, Guideline
1, para. 1.1.
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.
.
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.
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.
See
F A R Bennion, Statute Law (3rd edn, 1990), pp.
228-229.
.
[2008] EWHC 1777 (QB).
At
para. 11 (the emphasis is Eady J’s).
.
Para. 7.
At
para. 126.
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.
.
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.
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