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

[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.