Here’s a How-De-Do
The follow-on meeting between the Lord Chancellor, her junior minister, Chris Fish, his political adviser, Jeremy Paxton and the Head of the Policy Unit to discuss the political adviser’s paper on current public concerns about the justice system at which
- there is discussion of developing a strategy to “drain the legal swamp” and reconcile conflicts in the Cabinet
- the political adviser complains that the law is unnecessarily complex and uncertain and the statute book a mess and
- the Head of the Policy Unit explains that (i) the law and the statute book reflect the complex and messy realities of everyday life and of our desires; (ii) those realities can be dealt with either by simplistic rules that produce absurd results in some cases, complex rules that lead to legal thickets or judicial discretion which can lead to uncertainty and judges “usurping” the legislative role: (iii) it can be politically advantageous to put the judges in the line of fire by giving them discretion in hard cases and (v) legal uncertainty can be beneficial and legal certainty expensive and unjust.
LC/SOS:I expect you have all heard what happened in Cabinet.
CF:I did. Seems the Home Secretary is champing at the bit to get on with “draining the legal swamp” and the Attorney is digging in his heels and demanding a more ‘softly, softly catchee monkey’approach.
LC/SOS:Or “no catchee monkey” at all approach. And I risk getting caught in the cross-fire. In fact, the PM’s PS suggested to me on the ‘phone later that I might perhaps try to reconcile the warring factions and pull together a strategy we could all sign up to.
CF:And what did you say?
LC/SOSI said I would think about it.
CF:Why think about it? With respect, Patricia, why look the gift horse in the mouth? You know the weight the PM’s places on clearing out the legal jungle and if you could lead the way, with me at your side, of course, and using Jeremy’s blueprint to guide us, well, who knows where we might end up.
PD:I agree with the Minister about who knows where? But this is politics, Lord Chancellor, not, as they say, “my bag”.
LC/SOS:But technically, do you think we could come up with a strategy?
PD:Oh, no question, Lord Chancellor. One can always knock up a strategy.
CF:Your mocking tone is becoming irritating, PD. Don’t you take anything seriously?
PD:Minister, I take everything seriously and I am serious when I say one can always knock up a strategy.
LC/SOS:Well, if you are being serious, explain to we innocent souls how it is done.
PD:Happily, Lord Chancellor. First, you need to come up with an all embracing Strategic Aim or Vision as I believe management consultants call it. The grander and the vaguer the better, of course. To cover MoJ’s remit it might be something like “Justice for all”. Then you need to describe what the Department actually does but in as highly aspirational terms as you can. Hence, this Department might identify as its Strategic Objectives things like “Making law user-friendly” and/or “Settling not Suing” and/or “Making prison work”. Then all you have to do is list whatever work the Department already has in hand or is already planning under one or more of those Objectives, et voilà, you have a strategy.
CF:But strategies are meant to drive policy. This just means business as usual. Just setting out what we have always done and what we are already doing in a framework.
PD:Ah, yes. But it is a strategicframework, Minister. And, if you are challenged about its strategic value and validity, you just point out that the Strategic Objectives are consistent with the Strategic Aim and that what we are doing and planning to do contribute to one or more of the Strategic Objectives and thus demonstrate that you have a coherent and action-packed programme.
LC/SOS:But surely that does demonstrate that we do have a coherent strategy and that our policies are consistent and coordinated?
PD:I am pleased to be able to say it does not, Lord Chancellor. Take for example the strategic objective of “Making Prison Work”. As we noted earlier, we have contradictory policies in place already. One is aimed at increasing sentences and the other at getting convicts out of jail early. Both nestle comfortably under the “Making Prison Work” objective but they remain contradictory. The one great thing about strategies is that they do not have to get in the way of muddling through.
CF:And what you’re saying is that you could sit down right now and write a coherent strategic plan.
PD:Of course. But that would be a mistake.
CF:Why a mistake when it is just what we need?
PD:A famed Chief Justice of the US Supreme Court once explained that his career in the Court got off to a rocky start because he wrote his judgments immediately after the cases finished and circulated them to his fellow judges. They did not give them much weight because they thought he had not taken long enough to consider the issues. Once he recognised the problem, he continued to write his judgments straightaway but took the precaution of putting them in his bottom draw for a month or two before circulating them. In no time, he gained the reputation of being amongst the most carefully considered of the justices.
CF:Good story, But what’s your point?
PD:My point is that it is the same with strategies. The appearance of deep thinking and analysis is essential to its credibility. You need to hold ‘away days’ or even ‘away weekends’.
CF:Well, we’re doing that.
PD:Quite. But then top management has to be seen to dig deep into the very soul of the organisation to reveal its existential purpose and how it is to be made incarnate. You also need to tap the grand-eloquent obfuscations of extraordinarily expensive outside consultants to hide the entirely vacuous nature of the enterprise. And with that all done, you pull out your strategy from the bottom drawer and spring it on an innocent and admiring world.
LC/SOS:Gentlemen, enough. Despite PD’s usual debunking, if I am to broker a truce and develop a strategy that my ministerial colleagues will all sign up to, it makes it all the more important that we press on quickly through Jeremy’s paper. Getting a grip of the issues he has raised will put us a step ahead of the others and might perhaps give us leverage in just knowing what they do not know.
CF:I can see where you are coming from, Patricia. I mean Jeremy and I have done our bit in coming up with an agenda of the outragesand I just hope PD can now be rather more constructive.
PD:I shall do my best.
LC/SOS:So where shall we start today?
PD:Mr Paxton and I thought we might start with a closer look at the law and the legal system themselves.
CF:A real can of worms. Might it help, Patricia, if Jeremy reminded you of the problems?
JP: Keeping it short, Secretary of State, the problem is that the law is a complete and utter mess. No one can understand it. It’s too complicated and the statute book is a pile of obscure and often outdated laws which often conflict.
LC/SoS:PD, something makes me think that you are about to do what lawyers call ‘admit and avoid’.
PD:As ever, Lord Chancellor, Mr Paxton is right. The law is complicated, at times obscure and often uncertain and contradictory too.
CF:Cut the flattery, PD. You admit the charges are true. So why do I suspect that you’reabout to tell us the dog’s dinner of a statue book is somehow a Good Thing?
PD:You are right, Minister that the law is a mess and, if not in itself a Good Thing, it reflects a Good Thing. As you will recall, we discussed the dangers of tidy mindedness and the advantages of creative chaos in policy making at our earlier meeting and how planning and coherent policies…
LC/SOS:…would likely result in us all “going to hell in a hand cart”.
PD:Precisely, Lord Chancellor. Acts of Parliament are one means of achieving policy aims. Hence, you cannot have a coherent statute book if you are running a system based on policies which allow for contradictions and creative chaos. The law is the child of the policy.
CF: Like father like son? Oh, c’mon, PD. Pull the other one. Those are just excuses.
LC/SOS:I think a bit more than that, Chris. So, let’s press on. Now, PD, Jeremy is surely right that the law is unclear and too complex for most people to understand.
PD:It is, Lord Chancellor. But then life is too complicated and too contradictory for people to understand, including me.
CF: That sounds like an opening of a speech in ‘the court of special pleading’.
PD:I regret that, Minister. But to explain what I mean perhaps we could take a concrete example, such as knife crime, and think it through.
LC/SOS:But the last government legislated on it only 18 months ago.
PD:I know, Lord Chancellor, but our thinking it through again may, I hope, help us understand why the law can appear over complicated and what the alternatives are.
CF: Feels like the kind of role play that management consultants indulge in.
LC/SOS:Or perhaps a rather sophisticated parlour game, Chris. Press on PD.
PD:Thank you, Lord Chancellor. Let’s pretend we are the last government when knife crime grabbed the headlines and there were loud demands that something must be done. What is the difficulty we face? My Paxton?
JP: Pretending to be them? Hmm, as I recall, the problem we face is that we have to wait for someone to be stabbed before we can arrest and disarm the criminal. So we need to have a law that discourages knives and allows us to catch the knifeman before he skewers some poor innocent with his blade.
LC/SOS:Graphically stated, Jeremy. Quite streetwise. So we should make carrying a knife illegal. Where’s the problem with that PD?
PD:No problem at all, Lord Chancellor, but might I just ask what you mean by “carrying a knife”?
CF: Oh come off it, PD. It means what the Lord Chancellor said. But I know you love all that lawyer jargon. So, what shall we say, “in possession of a knife”. But for the life of me I don’t see why everyday language, words like “carrying”, can’t be used for writing laws. It is about time Parliamentary Counsel came to terms with the vernacular in their bill drafting.
PD:Then you would be happy, Minister, for a gang member, who spots that the police are around, taking his knife out of his pocket, placing it on the park bench beside him and grinning as the police pass by without being able to intervene because he is not actually carrying the knife?
JP: Of course not. You know Chris didn’t mean that.
PD:Well if that is not what the Minister meant, “carrying” won’t do. It would not fit the facts he wants it to cover.
JP:OK, so will “possession” do?
PD:That too depends on what you want. Is a person to be in possession if, in fact, someone else is carrying the knife for him? Say he is the leader of a gang who always has a young child carry the knife in case he gets stopped and searched. Would you want to catch him?
CF: Of course we would.
PD:Then the law will have to cover that too. Consequently, in addition to making it “unlawful to be in possession of a knife”, the law would have to provide that “being in possession” includes where the knife is, say, “under the control” of the accused person but in the physical possession of a third party.
JP: If you like.
PD:It is not what I like, Mr Paxton. I am just trying to be clear about the circumstances in which you and the Minister want the rule to apply.
LC/SOS:But that sorts matters out and it is still relatively simple, PD.
PD:It is Lord Chancellor, provided you are happy to be arrested in your kitchen when you are slicing up the lemon to go into your pre-prandial G & T.
JP: I get it: but all we have to do is say that the person in possession or who has control of the knife has to be in “a public place”.
LC/SOS:There we are, PD, a little more complex but still clear and simple.
PD:I agree, Lord Chancellor, except I would have to ask whether both the knife and the person in control have to be in a public place at the same time. For example, say the gang leader is standing in the doorway of his flat talking to the child who is carrying the knife but who is standing in the public hallway? Is the gang leader then in possession in a public place when in fact he is in a private place?
CF:That’s a difficult one. I’d need to think about it. But if they were both in a public place the police would be able to nick them, yes?
PD:Well that depends on what you mean by a public place. For example, it might not, say, cover a pub car park which had a chain across the entrance with a sign saying No Public Entry. However, it would include the Lord Chancellor’s knife toting gardener on those days when she opens her garden to the public to raise money for charity?
CF: Can’t we just say something like usually open to the public.
PD:We can, Minister, though then you would need to define “usually”. Would it, for example, include a closed car park attached to a pub that is still up and running and where the public still “usually go”, but not the car park of a pub that itself has closed down so that the public no longer “usually” go there?
CF: Why are you making all these difficulties, PD? No wonder the law is in a mess.
PD:I am not making any difficulties, Minister. I am just asking what, as a matter of fact, you, as the policy maker, want the law to cover.
LC/SOS:I take your point PD. But even so, the law can be much more complicated than that.
PD:It can indeed, Lord Chancellor. I have yet to discover from the Minister whether he is content with limiting the rule to knives. If he is, then gang members will simply change their weapon of choice to sharpened screwdrivers or the like.
JP: We could say anything that is sharp or pointed.
PD:We could, Mr Paxton, though recalling that Caesar attempted to defend himself by stabbing his assassins with his writing stylus, we might be exposing everyone who carries a pen or pencil in their inside pocket to prosecution. And we haven’t yet touched on people who have to carry knives about with them in public to do their job.
CF: But we could cover all that by saying that it would be alright if the person had the sharpened object for some good reason.
LC/SOS:Chris, I can see you really are getting the hang of this. Over to you PD, I think.
PD: Do I take it that would mean that, if the Lord Chancellor saw her daughter being attacked by a gang in the street outside her house, she would not be breaking the law if she grabbed a knife and ran out to save her child?
CF: Of course she wouldn’t.
PD:I see. My only difficulty is that making the defence of one self or another person a good reason for carrying a knife would render the law useless for dealing with gang members.
LC/SOS:Really, PD. Explain if you would.
PD: Certainly, Lord Chancellor. It would mean that every gang member caught on the streets with a knife would claim truthfully that he was carrying the knife to protect himself from members of other gangs and the police would have to let him go.
LC/SOS:Ah, I see.
JP: Well, of course, the rule might need a bit of adjustment here and there. But why can’t we say that gang members can’t claim self-defence?
PD:Could be difficult to prove or distinguish between who are and who are not gang members. But putting that aside, are you suggesting, Mr Paxton, that a gang member who sees his daughter being threatened with death by a mob outside their holiday hotel would be a guilty if he grabbed a knife and ran out to save her?
JP: How likely is that?
CF:It may not be likely, Jeremy, but if it happened I wouldn’t want to be the minister who had to explain why we were charging a father for protecting his daughter.
JP: Ah yes. Sorry Chris. I didn’t mean to suggest…
CF:Quiet a moment, Jeremy. So…given all that you have said, PD, why don’t youtell us what the right law would be?
PD:Oh dear, did I give the impression there was a “right law”, Minister? Of course, there isn’t. Life is much too complicated for that. The idea that you can make the infinite variety and complexities of real life simple by thinking up smart and simple rules is a common nonsense. As I explained earlier, social and economic policy is rarely about a problem to which there is an answer. More usually, almost always, it is about coming to terms with the difficulties of the real world and deciding how we manage them.
CF: But the criminal law is not the only complicated law.
PD:Indeed, it is not.
JP: Chris is right. Just look at tax law. A real mess. Surely the lawyers could make it simpler?
PD:Ah yes. Odd, of course, because tax legislation is intended to be very precise and to make the law ‘watertight’ as it were.
LC/SOS:But you will admit, PD, it is neither of those things. As Jeremy says, tax law is an impenetrable thicket and, as we know, open to people cheating by finding ways round the rules.
PD:Exactly so, Lord Chancellor. But that is inevitable.
PD:Really, Minister. Let us say that we have a clear and simple policy, namely to tax income. Immediately there is the question of what is income? Is it only money or does it include other things received? Does it include gifts and/or dividend payments from investments or only income that is earned and, if so, are earned and unearned income to be treated differently? And, is there a need to make a distinction between income and capital gains when selling property? If so, you now have three tax regimes for earned and for unearned income and for income from capital gains. And in each of them, are the taxes to be levied on all of a person’s income and gains or are there to be limits below which no tax is paid or indeed limits above which higher rates of tax are to be paid? Can you set off some kinds of expenditure against your income and gains and only pay tax on the net sum and if so, which expenses? What about income earned or paid or gained abroad and then of course there is the question of…
LC/SOS:Alright PD, we get the point. We need rules to cover all those and other details.
PD:Thank you, Lord Chancellor, but perhaps I might just add that we have not yet mentioned corporation, land, inheritance, sales or other taxes. And for completeness, once you have all these very precise rules in place for taxing all the huge variety of ways we get and stay rich, you are then faced with people finding ways round them, what we call ‘gaming the system’, and so you have to pass more laws to block the gaming.
LC/SOS:It sounds like an endless game of cat and mouse.
PD:And so it is, Lord Chancellor:why else do you think we need an annual Finance Act and why new tax regulations gush from the Treasury like water from a breached dam?
JP: But a complete review of tax from the bottom up could clean out the system.
PD:While I understand that there are those who consider cleaning the system from the bottom up to be good for one’s health, Mr Paxton, I regret to say that when it comes to tax law the angle of approach makes no difference.
LC/SOS:You mean that a complete review would not help?
PD:Only marginally in my experience, Lord Chancellor. Alas, simple and clear rules to cover the complexities of real life leave us with a dilemma. Either you can have a simple rule, in which case you get ridiculous outcomes in the real world.
LC/SOS:You mean like being arrested for having a knife in your own kitchen or arresting the father who grabs a knife and rushes into the street to save his daughter.
PD:Splendid example if I may say so, Lord Chancellor.
LC/SOS:But you said “or”.
PD:Or you have a complex structure of individually precise rules which take into account as many possible combination of facts as you can imagine and in that way avoid at least some of the most ridiculous outcomes. However, that risks becoming a thicket of fine distinctions which are difficult to understand and vulnerable to gaming.
CF:So there is no way out.
PD:Not quite, Minister. You can give the judges a wide power to get round what would be silly results. For example, you could simply provide in the statute that it shall be an offence to be in possession of a knife in a public place without having reasonable cause.
LC/SOS:You mean leaving the judge to decide what being in possession of a knife means, whether a place is public and whether someone has a reasonable excuse for carrying the knife.
PD:Right again, Lord Chancellor. There is, however, difficulty that you will then be accused of making vague law and leaving people unsure of what the law is and when it is broken. There would also be complaints that you are allowing the judges to make the law and that different judges may interpret the law in different ways so that whether you are guilty or not depends on the judge who hears the case. To extend Mr Paxton’s metaphor, you escape a thicket but find yourself in a fog.
CF:Not much of a choice.
PD:But it means that it is the judges, rather than you or your colleagues in government or Parliament, who take the flack from the public and the press when difficult and borderline cases have to be addressed, fine distinctions drawn or untoward and unforeseen outcomes accepted.
CF:Well, of course, I begin to see that the judges are uniquely qualified to make these fine distinctions and deal with unlooked for problems.
PD:Why am I not surprised by your sudden trust and admiration for the judges? Meanwhile, perhaps I should add in passing that leaving matters for the judges to decide, rather than prescribing everything in the statute is, in any event, essential to the justice system being just.
JP:But surely, we should all be treated the same: equality before the law and all that, rather than leaving things to the whims of individual judges?
PD:Equality before the law is all very fine and to do justice we should all be convicted if we steal. That said, if the sentencing is to be just it has to reflect the particular circumstances of the case. A first-time shoplifter should not receive the same sentence as a repeat offender who is a member of an organised gang specialising in shop thefts.
LC/SOS:I see that, don’t you, Jeremy?
JP:I suppose so.
PD: I should perhaps add that in addition to doing justice, some vagueness or uncertainty in the law can be highly efficient.
CF:Efficient? How can it be “efficient” to leave people floundering about not knowing what the law is or spending huge sums on barristers’ opinions to try and find out what it is? Think of all the extra cases that are brought to court because no one knows what the law is. This really is tosh, PD.
PD:I see I need to explain, Minister.
CF:Too right, you do.
PD:Minister, in addition to leaving some flexibility to deal with unexpected situations, when no one is sure what the law is there is a strong incentive to settle the case without troubling the judges precisely because no one can know what the outcome of a trial would be. Thus, uncertainty encourages plea bargaining in criminal cases and settlements in civil cases and so avoids trials. Just look at divorce cases. The judges are simply told to make orders that are fair. Hence no one can predict with much accuracy what the judge might do. No wonder very few people leave it up to the judges to decide but prefer to get some control over things by negotiating an agreement with the other side.
LC/SOS:But surely, PD, legal certainty would increase settlements even further?
PD:You might think so, Lord Chancellor, but it all depends on the circumstances of the case. If a party knows exactly what the law is and knows exactly what he will gain if he can prove the particular set of facts that trigger the rule, he can begin to calculate and manage the risks involved without negotiating and may then decide it is worth going to trial.
CF:You have lost me, PD.
PD:Let me give an example, Minister. Let us say that, to make divorce law more certain, we had a rule which provided that property owned before the marriage was not to be taken into account in making financial orders on divorce. Then take a husband who claims that savings which he had before the marriage were later used to buy the family home and that as a result his wife should not receive a share of the home’s value. He is told by his lawyers that he has a 50% chance of proving that the home, which is now worth £800k, represents his original savings and that the added legal costs of fighting the case are £20k. In those circumstances, he may decide it is worth fighting the case given that he knows that he stands to gain £400k for a stake of £20k at odds of 50/50. However, had he been told that whatever he proved, the judge would do what he thought was fair, he would likely have settled the case. It is uncertainty in all its forms that drives settlements.
LC/SOS:So, are you saying that legal uncertainty encourages settlements and legal certainty encourages litigation?
PD:Not quite, Lord Chancellor. What I am saying is that uncertainty can encourages settlements and that certainty can encourage litigation.
JP:So why do experienced and senior judges and lawyers who, unlike you, actually practice the law, treat legal certainty as the gold standard?
PD:Surely that is obvious, Mr Paxton. It lowers their professional risk of being publicly humiliated for getting the law wrong when advising clients or deciding cases.
LC/SOS:You have an answer for everything, PD.
PD: I do my best, Lord Chancellor.