21 September 2009

On arbitrary powers of the Scottish Ministers...

"Turn him to any cause of policy,
The Gordian Knot of it he will unloose,
Familiar as his garter" (Shakespeare Henry V Act 1 Scene 1. 45–47)

“Anger as radical reform of rape laws delayed by a year”, ran the headline in the Sunday Herald yesterday. I suspect people’s general sense is that once the presiding officer has banged his gavel – or the tribunes’ electronic votes form a heavy digital yea pile – in that instant, the law of the land undergoes a metamorphosis. Not so, alas. First, the measure must attain royal assent. And then it is law? Not necessarily. Frequently the wriggling digits of the bureaucratic and ministerial interest snag the process and ministers are solely empowered to bring the legislation into lawful effect, either in whole, or in parts. Betimes, this arrangement can wear the shifty, sweatsome appearance of a suspiciously minded “pocket veto”. Tribunes mistrustful of their leery ministerial masters would be well-advised to put some constraints on their capacity to dawdle with implementation. It takes a workhorse legislator (or one blessed with the low animal cunning to turn to the last section of the would-be enactment) to plod through the whole piece, since questions of commencement in the genre appear as the enactment’s exciting dénouement.

One good example of the range of ways in which draftsmanship can empower – or entangle – the minister are to be found in the freshly-laundered Climate Change (Scotland) Act 2009, which holds in its centennial section that:

100 Short title and commencement
(1) This Act may be cited as the Climate Change (Scotland) Act 2009.
(2) This Act (other than this section and sections 27 to 32, 56, 70 and 96) comes into force on such day (in the case of sections 44 to 52, being no later than 18 months after the day on which the Bill for this Act receives Royal Assent) as the Scottish Ministers may, by order, appoint.
(3) Sections 27 to 32 and 56 come into force in accordance with section 26.
(4) Section 70 comes into force on the day after the Bill for this Act receives Royal Assent.
(5) Different days may, under subsection (2), be appointed for different purposes.

Under section 100(2), ministers are graced with only a year and a half to bring into effect the sections on the new “Duties of Public Bodies Relating to Climate Change” (s44 – 52), while they operate out of time, free to bring into effect by fiat (only constrained by legitimate politic badgering). Compare the complained of section in the briefer Act mentioned in the Sunday Herald article:

62 Short title and commencement
(1) This Act may be cited as the Sexual Offences (Scotland) Act 2009.
(2) This Act (other than sections 1(4), 17(3), 58 to 60 and this section) comes into force in accordance with provision made by the Scottish Ministers by order.
As you’ll notice, once again the parliament (in its wisdom) empowers the minister basically to do has he or she pleases. And so it seems, MacAskill the Goldfish Orator has decided to do. While the Sexual Offences (Scotland) Act 2009 received its queenly nod over the summer, a year will supervene before the minister’s say-so will pop the legislative cork and free the bottled spider. Folk aren’t happy.

A Scottish Government spokesman is quoted, saying: “The act is expected to come into force later next year. We are working to ensure that the police, Crown Office and Scottish Court Service staff are fully trained when the act is implemented and the necessary systems are in place.”
Baillie Bill Aitken is quoted finding “this astonishing. The justice committee spent a long time and considerable effort to assist the victims of sexual assault. I’m disappointed there is to be this quite unnecessary delay. The preparation should have been in hand a year ago.”

While I can see that a new piece of governing legislation will rummage and disorder the sack of traditional protocol – the process of legislative reform in this area has taken fatuously long. Remember, the origins of the 2009 Act are in 2004. When she was justice secretary, Cathy Jamieson initially denied the need for reform of the laws on rape – and apparently did not regard the Scots legal phenomenon of the unrapeable man problematic. The Executive’s position changed when ex-Maximum McConnell directed the Scottish Law Commission to look into the area in the summer of 2004 - now more than five years ago. While I’m broadly supportive of many of the purposes of the Act, the Commission’s influence in this case has precisely decelerated the reform process. From the 2004 starting point, its final report was published in December 2007. Needless research can be a hideous drag on reform, particularly one governed primarily by normative, ethical judgements rather than knotty, Gordian questions of legal technicality.

Until we cry out – hold enough! Lay on. Get to it. If we don't, the bureaucratic bounty will bob along sans objection, till the day of ressurection. In this instance, informed by this sense that the whole process of reform in this area has been ludicrously and purposelessly extended, I am in some sympathy with the parliamentary complainers. Smug, rationalising ideas that we must have all or nothing’s law, that the Law Commission ought to show off by generating bumper reform, rather than immediately acting to fix obvious anomalies – has resulted in legislative bloat and clotting. If we regard the previous law as unjust, if we believe that non-recognition of underlying parity of victimisation across genders and different species of rape is a form of conceptual violence against the subject, this lawmaking and lawyerly flopping about in the formulation and promulgation of the reforming Act becomes not simply self-indulgent, but actively grotesque. Fostering and perpetuating old and rejected injustices, the claims of equal victimisation have not been taken sufficiently seriously to warrant brisk, rapidly reforming moves. Either by Parliament, Law Commission or Ministers.

Equally, oh supine tribunes, if you are so terrifically keen to see your laws smack the realm about quickly – for heavens sake, employ your powers of oversight, dare to drag your eyes to the final section of your Bills and insist on short terms of commencement and a constraint on more or less arbitrary ministerial power. It is all very well to complain after the event, but you made it possible, dearies. Bully for you.


  1. I'd be interested to know why or how you think the research carried out by the SLC in this area was "needless". And are we to assume from your comments that you think the SLC should only be involved in reform where there are issues of legal technicality?

  2. Love and Garbage,

    A brief initial response. Various themes intertwine for me, here.

    It has always struck me as problematic that the Law Commission is a lawyers' monopoly when the objects they examine and report on are deeply governed by policy, political philosophy, ethics - in which area, the commissioners are no more informed than any of the rest of us.

    While accruing social clout to the Commission can be a force for good - politicians potentially finding a positively reforming measure more charismatic because it originates in an independent body - this is an argument from authority and not a rational imperative to follow the commission's views in any particular. This, in short, because these aren't really legal questions. Commission may have something interesting to say about the form of legal expression which these norms might have or ought to have. Indeed, we have every reason to be deeply suspicious of any such sly attempt to smuggle in personal preferences under the apparently innocent guise of legal expertise.

    Secondly, as I hoped to make clear in the main post, in the specific circumstances of the 2009 Act, a comprehensive review - long and drawn out - stood in the path of more rapid reforms in particular areas now addressed, many years later, in that enactment. Research ought to be for discovering what you do not know - not simply a way of delaying doing what you've already decided to do. It is my suspicion that there is more than a pinch of that phenomenon in the present case.

  3. SLC is staffed by lawyers, and the Commissioners are lawyers (from all branches of the profession) but in recent years the operational manager has been a figure from the civil service with a policy background. The SLC often commission social research and opinion polls to inform the socio-economic background to their work (see the Succession report as a recent example, and the earlier work on debt enforcement was informed by the extensive CRU studies in the area). And the SLC is aware of the distinction between legal and social policy. However, the SLC reports are only recommendations. It is still for Parliament to decide. Sometimes too, the SLC will have a clear policy steer from the government and the law reform project be tempered accordingly (as happens frequently - indeed, the figures from the recent SLC reports indicate that the rates of implementation were better pre-devolution than in recent years).

    Law reform should - if done properly - consider the implications for other aspects of the system (no reform is consequence free, and the SLC approach to systematic projects allow the reformers to consider the implications and necessary adjustments in other areas, thereby avoiding the unnecessary tinkering and tweaks that piecemeal reform tends to trigger). Reform of issues of consent and gender neutrality in certain high profile aspects of the law of sexual offences were bound to have a knock-on consequence in other areas. Better to legislate in haste and then tease out the problems later with more remedial legislation, leave ti to the courts to sort out (without the democratic mandate), or to try to systematically address the issues in one project - present the case to Parliament and the government and allow the elected representatives to make their views clear? (There are, as I'm sure you're aware, a number of instances of Parliament and gtovernment departing from the SLC recommendations - surely that's how things should work?)

    Any reform project should also consider comparative work. This is something the SLC does very effectively, examining the approaches of other systems. To then consider which approaches would and would not work in Scots law takes time (some historic reforms don't work because they didn't fit into the system, requiring remedial legislation years later).

    Reform projects should not be rushed. The time pressures placed on the SLC in relation to the World's End refrences for example, are ridiculous - to expect a thoroughly researched, properly operational reform to be done.

    I would much rather have a systematic SLC review than the shambles that accompanied the bankruptcy reforms where the government consulted on reforms to trust deeds while the legislation was going through Parliament, pledging to amend by SSI when the results arrived - and giving no opportunity for adequate scrutiny.

    A final point, on the sexual offences issue - amendment of the substantive law was presented (and continues in some quarters to be presented) as a panacea to resolve poor conviction rates. First, the assessment of conviction rates in comparison with other nations is operating from a different starting base (indicating that proper comparisons cannot be made) - see the recent edition of More or Less for an informative discussion of this. Second, the reform of substantive law does not address the appreciable institutional problems (within the pillars of the criminal justice system) and cannot remedy the procedural aspects. They fell outwith the scope of the reference to the SLC.