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.

[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.

[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.

[del-c.livejournal.com]

HMG in Badly Drafted Legislation Shock

What's the well-drafted alternative?

[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?

[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?

[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.

[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.