HMG in Badly Drafted Legislation Shock

[major_clanger]

Via the BBC:

"A married Canadian woman is due to fly out of Heathrow later under imminent threat of deportation from the UK. Rochelle Wallis is one of the first people to fall foul of the unintended consequences of rules brought in last year to stop forced marriages."

This is yet another example of this Government's prediction for trying to legislate away problems without carrying out a proper analysis of the wider consequences of new laws. It seems that even the Home Secretary is implicitly admitting that this case is far from the circumstances that the law was meant to apply to, but that it would be too embarrassing and awkward to start making exceptions.

I am tempted to volunteer my services to HMG to read draft legislation and suggest "what if X happened?" I assume such a position is vacant, because there seems little sign of this being actually done these days.

(Here, for instance, there is a blanket minimum age of 21, raised recently from 18. It seems - I can't find the enabling legislation anywhere, and it may just have been a policy change - that there's no appeal or exceptions process. Frankly, if this wasn't a legislative change it ought to be subject to judicial review, and if it was then I'm not sure it's HRA 1998 compliant. Of course, HMG would probably assert that since by definition the people affected aren't UK or EU citizens yet, the Human Rights Act doesn't apply to them. Bah.)

Comments

[woolymonkey.livejournal.com]

I assume such a position is vacant, because there seems little sign of this being actually done these days.

By that reasoning, there must be an incredibly large number of vacancies in a certain university's French department.

[rozk.livejournal.com]

Of course, HMG would probably assert that since by definition the people affected aren't UK or EU citizens yet, the Human Rights Act doesn't apply to them.

But their spouses are UK citizens and this is a clear breach of their rights under articles 8 and 12.

[major-clanger.livejournal.com]

That would be my submission, yes. The problem is that there isn't a formal mechanism for declaring a law void just because it is not HRA compliant; IIRC, in extremis the Government will just concede non-compliance and carry on. That leaves a claim in the ECHR, but such cases take years.

[liadnan]

Interesting: the explanatory memo to the rule change (at page 47 of the 60 page pdf I link to below) says:
"5. European Convention on Human Rights
5.1 As the instrument is subject to negative resolution procedure and does not amend primary
legislation, no statement is required."

The relevant bit of the explanatory memo is paras 6.31ff on page 53.

I have a funny feeling that the changes to visas for "entertainers" contained in the same document have already caused problems.

[the-gardener.livejournal.com]

As the instrument is subject to negative resolution procedure and does not amend primary legislation, no statement is required.

This is a piece of standard boilerplate for any SI which amends another SI. It's supposed to indicate that the changes are largely technical, even though in case they clearly were not.

[andrewducker]

See, it's careless legislation like this that brings the government into disrepute. With a bit of finesse it would have worked much better. Clearly the law should have stated that "Foreigners marrying british people do not get an automatic right to stay, if their skin is a funny colour." - which would mean that 90% of the population would not care...

[robert-jones.livejournal.com]

As somebody with a good deal of experience of preparing legislation (albeit not in the UK), I can assure you that there are plenty of people asking 'what if X happened?'. The difficulty is (a) there's invariably pressure for legislation to be published far faster than is sensible and (b) there is always some-one who pops up at the last minute with a 'vital' change to the legislation, which is then made in a mad rush and turns out to have unintended consequences. There is also the problem that when people are mostly interested in what happens in one context, they have great difficulty keeping in mind that the legislation will also apply in other contexts, even if they are theoretically aware of that.

[major-clanger.livejournal.com]

I completely agree. Yes, of course draft legislation is subject to what-if analysis, but I think you nail on the head the reasons why this is often inadequate or fails to deal with a last-minute change.

In my own specialist area, the classic example of such special-interest amendment is s.301 CDPA 1988:

301. The provisions of Schedule 6 have effect for conferring on trustees for the benefit of the Hospital for Sick Children, Great Ormond Street, London, a right to a royalty in respect of the public performance, commercial publication, broadcasting or inclusion in a cable programme service of the play "Peter Pan" by Sir James Matthew Barrie, or of any adaptation of that work, notwithstanding that copyright in the work expired on 31st December 1987.

How it happened. It's hard to criticise anyone's motivation here, but really, this is not how we make law.

but really, this is not how we make law

[liadnan]

Well, it kind of plainly is. Cf (attrib to) Otto von Bismarck wrt sausages.

[drplokta]

So what's wrong with adding a clause saying "This legislation will only apply in this context", which will presumably keep those people happy while avoiding the out-of-context problem?

[major-clanger.livejournal.com]

To be very frank, I suspect because this law is aimed at particular ethnic/religious groups but HMG does not want to explicitly admit that.

[stevegreen.livejournal.com]

I heard about this case just before I headed out to Canada myself, and assumed - obviously wrongly - that someone would grasp the nettle and prevent an obvious injustice.

[rozk.livejournal.com]

I would suspect that someone has made a cold-blooded calculation that, by the time she could get a case through the European court, or possibly even through judicial review here, she will be old enough that she can get back in anyway. Also, having a high-profile case that involves a marriage that is not a forced marriage, and has no religio-racial complexities, enables the government to look even-handed, when the intention of the law is not.

[stevegreen.livejournal.com]

I regret you may well be right.

[the-gardener.livejournal.com]

I would suspect that someone has made a cold-blooded calculation that, by the time she could get a case through the European court, or possibly even through judicial review here, she will be old enough that she can get back in anyway.

The longer term result of taking such a case to the ECHR, however, is that it would formally declare the law incompatible with the European Convention. It might remain on the statute book (cf major_clanger's comment above), but would become for all practical purposes inoperable.

[del-c.livejournal.com]

HMG in Badly Drafted Legislation Shock

What's the well-drafted alternative?

[stevegreen.livejournal.com]

Bad law is generally worse than no law.

[marypcb.livejournal.com]

something that addresses the coercion aspect not the age aspect?

[liadnan]

It seems to have been a formal statement of change to the immigration rules laid before parliament by the Home Secretary (actually it is, or was Woolas' bag in particular) on 4th November 2008 pursuant to powers then contained in section 3(2) of the Immigration Act 1971 (possibly now replaced by the Borders Immigration and Citizenship Act 2009, I can't summon up the energy to read that). The reference to the Forced Marriages (Civil Protection) Act 2007 in the news are misleading: obviously it is part of the same policy (it was inspired by a review post that act going through parliament, apparently) but in fact that doesn't deal with immigration, it amends the Family Law Acts to give further powers re forced marriages to the Family Division.

The original policy announcement was in June 2008 (have a google for a pdf called Marriage Visas the Way Forward dated July 2008). The rules as amended are here: http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/ and the particular statement of changes is the top one here: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/statementsofchanges/

In essence it's the equivalent of a statutory instrument and certainly justiciable.

It's an abysmal mess but so what's new?

[liadnan]

PS if anyone wants to trawl Hansard to see if anyone said anything (other than Woolas' written statement) at the time, the relevant bit is here: http://www.publications.parliament.uk/pa/cm/cmvol482.htm

[marypcb.livejournal.com]

I love this line
"He had the discretion to let Mrs Wallis remain with her husband at their home near Aberystwyth but refused to do so because many other innocent victims may also be caught out by the same rule. "

because being able to help people is obviously not part of his job?

[pjc50.livejournal.com]

Compassion is reserved for trading convicted terrorists for oil, unfortunately.

[purplecthulhu.livejournal.com]

New Labour isn't known for being helpful to those innocent people caught up in their legislative crusades... eg. innocents on the DNA database or the whole country if they get to bring ID cards in.

[lil-shepherd.livejournal.com]

There are a number of reasons this happens. First among them are the politicalisation of the Civil Service. At one time, legislation used to take time to draft, but today it is often sent through at breakneck speed because the Minister needs to be seen to be acting now. Then if a Civil Servant should happen to spot problems with the draft, senior members of the service are reluctant to bring it up with the Minister, because, hey, he might get upset - or his political advisors might get upset. Not good for one's career to make a fuss.

So, hey, the legislation is read and there may be a file sitting somewhere where a junior-to-middle Civil Servant has noted the problems, but a decision has been made at higher level not to make a fuss. Hell, as not all senior Civil Servants are supine, and not all political advisors are stupid, this may well have been raised with the Minister, and s/he has ignored it - because that is the way it often happens.

Mind you, it has been like that for a while. Over 20 years ago I pointed out to my (middle ranking) boss that the our procedures were totally in breech of a particular clause of the EU legislation we administered. His response, was basically, "Is anyone else going to notice?" Then, on response that EU inspectors might but anyone else was unlikely to do so, he said, "I retire in two years and after that I really don't care."

I believe that those procedures are still in place, doing no harm to anyone, but technically in breech of the regulation. (Not that I can remember how they breeched it after all this time.)

[owlfish]

As I understand it, they could still legally live together anywhere in the EU *other* than the UK, but that's probably not much of a consolation to them.

[the-gardener.livejournal.com]

Perhaps the husband should emigrate to Canada and tell his MP and Alan Johnston that the UK has now permanently lost access to his skills and their income-generating potential.

Canada will probably be a better place to live anyway, given what's likely to happen to the UK economy over the next decade.

[miramon.livejournal.com]

Given that the civil service is now generating something like a page of legislation a minute and has been for nearly ten years, I think you might have an unfeasible task on your hands.