Any Footnotes Are Shown at the Bottom of Each Page s4

Doc. No. 2008.027 17 Com L (August 2008) 76-81

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Article in The Commonwealth Lawyer

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Multilex and Monolex: Aspects of Law Quality

How should law be framed? That is a basic question that is not often asked, though it should be. We fuss over detail, but ignore the central picture. In this article I discuss some basic formal considerations which affect the quality of a law. I use “law quality” as a special term to describe standards used when assessing the merits of the form rather than the substance of a particular law.[1]

What do we really want?

Before I go any further I should tackle the central question of what form of law do we really want? We need to judge law quality against an ideal. Here I will return to a paper I wrote over 40 years ago. I had just served for 12 years in the Westminster Parliamentary Counsel Office, where all Government legislative drafting is done. Having moved to a different job outside Whitehall I sat back and considered what I had learnt there. The result was that paper, titled “Some suggestions on the form and publication of statute law”[2]. Under the heading “What does the user want?” the following appears: “all written law dealing with a particular point should ideally be found in one place . . . the law, in the one place where it is found, will be in its most up-to-date form; that is, incorporating any amendments to the original” [3].

I returned to this theme of the desirability of “one place law” or what might be termed “monolex” in a 1976 article “Our legislators are CADS”[4]. This was about what I called the four vices of statute law: Compression, Anonymity, Distortion and Scatter. The last is a symptom of “multilex” legislative practice. I said in the article that under our legislative procedure the scattering of provisions dealing with one point is inevitable, and offered composite restatement as a remedy. This remedy has not of course been adopted, even though I published an entire book based on it.[5]

In my book Statute Law[6] I pointed out that scatter calls on the statute user to employ the difficult technique of conflating the various relevant texts[7]. Where you have scatter or “multilex” the resulting law quality is poor to a greater or lesser extent depending on the degree of scatter in the particular case. There are many different causes of scatter, all avoidable. One is the common device of empowering legislators to enact detailed legislation which is then subject to a requirement that judges shall rule on whether it complies with a constitutional or human rights formula. An early example is the United States Constitution. I now propose to examine at length a recent example of scatter relating to the Human Rights Act 1998.

The case of Gordon and Lucy

The House of Lords case R v G[8] is about two children whom I will call Gordon (the appellant) and Lucy (the complainant). We are not of course allowed to know their real names. At the time of the incident in question Gordon was 15 and Lucy 12. In a video-recorded interview Lucy said that she had gone to Gordon’s home and into his bedroom where they had chatted and he had then had vaginal intercourse with her even though she said that she did not want this[9]. This “had the hallmarks of opportunism”.[10] Lucy accepted that she might have told Gordon that she was 15[11].

Gordon pleaded guilty to the offence of rape of a child under 13, contrary to section 5 of the UK’s Sexual Offences Act 2003. This says that a male commits an offence if, in relation to a child who is under 13, he intentionally penetrates the vagina, anus or mouth of that child with his penis. The gravity of the section 5 offence is shown by the fact that a male aged 10 or over who is convicted of it is liable, on conviction on indictment, to imprisonment for life. Gordon was sentenced to a 12 month detention and training order, reduced on appeal to a conditional discharge. He appealed further to the House of Lords on two grounds, only one of which is relevant to this article, namely that the charge violated his right to privacy

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under article 8 (respect for private and family life) of the European Convention on Human Rights. This was alleged to be because it was disproportionate to charge him with rape under section 5 when on these facts he could properly have been charged with a less serious offence under section 13 of the 2003 Act (sex offences committed by persons under 18).

Article 8 and Law Quality

In R v G the Appellate Committee were divided on the question whether the charge violated Gordon’s right to privacy under article 8. The three who were in the majority answered the question in the negative, so Gordon’s appeal on that ground failed. (It also failed on the other ground, and the conviction and reduced sentence stood.) This three to two split among the Law Lords illustrates the obscurity of the language of article 8. Along with the multilex point, it raises questions of law quality, which I will now examine. I have written extensively on this subject elsewhere.[12]

Article 8 is titled “Right to respect for private and family life”. Clause 1 states that “Everyone has the right to respect for his private and family life, his home and his correspondence”. Clause 2 says:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

This is intended to be the statement of a law, or perhaps I should say a quasi-law. But in combination with the force given to it in Britain by the Human Rights Act 1998 it may properly be characterized as a full law. Let us try to look at it with fresh eyes, as if we had never seen it before and it had no history. Would we think it really looked like a law, standing alone? As originally promulgated it has no accompaniment except the preamble to the Convention, which adds nothing to its legal meaning.

For a law, the language of clause 1 is very odd. Why “respect”? What juridical effect is it meant to have to say that everyone has the right to respect for his private life? We must infer that it means his or her private life. Suppose he or she leads a thoroughly immoral, even criminal, private life - is it still entitled to “respect”? What exactly does the entitlement to respect require of the high contracting party in question (for the Convention is, we gather, only intended to bind the states that acceded to it)? These are matters of pure speculation, only to be answered by the officials appointed for the purpose, the judges of the European Court of Human Rights at Strasbourg. Later it was laid down by the Human Rights Act 1998 they had also to be answered by British judges required to “take into account” any relevant judgment, decision, declaration or advisory opinion of the Strasbourg court and opinion or decision of the European Commission of Human Rights.[13]

As one might expect, the curious term “respect” in article 8 has not fazed the best of British judges, for example Lord Bingham of Cornhill. He confidently said of article 8:

“The content of this right has been described as ‘elusive’ and does not lend itself to exhaustive definition. This may help to explain why the right is expressed as one to respect, as contrasted with the more categorical language used in other articles. But the purpose of the article is in my view clear. It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose.”[14]

The purpose of article 8 may be clear to Lord Bingham, composing his thoughts after half a century of elucidation by the Strasbourg court. His description of it does not seem to me to be very clear, considering that it is meant to be a law and laws are required to be “certain”. A law that is uncertain is to that extent a bad law. Let us look more deeply into this aspect.

Laws are required to be certain

Under the regime in France before the revolution the king could, by a secret letter or lettre de cachet, arbitrarily sentence a subject to imprisonment without trial for any offence, or fancied offence, he chose. In England, until the common law courts intervened, the Council of the North, an institution of government established in exercise of the royal prerogative by Henry VIII, operated under and enforced similar secret instructions from the king. Condemning this, Coke cited the maxim misera est servitus, ubi jus est vagum aut incertum (obedience is a hardship where the law is vague or uncertain).[15]

The common law insists on certainty in the law, since if law is not certain it is to that extent not known. Lord Diplock said:

“Unless men know what the rule of conduct is they cannot regulate their actions to conform to it. It fails in its primary function as a rule.”[16]

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In other words its law quality is poor. For the law not to be known is the ultimate injustice. In the common law courts it was early observed that: “certainty is the mother of repose, and incertainty (sic) is the mother of contention”.[17] Sir William Blackstone said:

“. . . since the respective members [of the state] are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will.”[18]

In modern democratic countries we believe that such directions are to be given not arbitrarily by lettres de cachet, but by clear rules democratically laid down in advance. Only if the state of the law on any point is obvious and manifest can people be sure it will not be manipulated to their disadvantage. What is publicly known cannot be privately altered. Locke said that the legislature must govern “by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court, and the countryman at plough”.[19]

Many examples could be given. Here is one expounded by Lord Brightman regarding the need to be able to rely on the certain operation of Limitation Acts:

“When a period of limitation has expired, a potential defendant should be able to assume that he is no longer at risk from a stale claim. He should be able to part with his papers if they exist and discard any proofs of witnesses which have been taken, discharge his solicitor if he has been retained, and order his affairs on the basis that his potential liability has gone.”[20]

The reason for this was explained by Lord Hope of Craighead in a later case:

“Witnesses may have died, memories may have become dimmed and relevant documents may have been destroyed or lost. As time goes on these effects may become less easy to detect, and this in itself is apt to produce injustice. Times change too, and conduct which may seem reprehensible today may have been regarded as acceptable or even as normal many years ago. So, as McHugh J said in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, 553, the public interest requires disputes to be settled as quickly as possible.”[21]

Of course the requirement calls for reasonable certainty: far-fetched objections will not be entertained.[22]

The essence is the good citizen’s peace of mind. Being law-abiding, he or she can trust in remaining untroubled by the law. Trustfulness is misguided where the law is not known, for then it cannot be known whether the law has been observed. If the law is both known and certain it is predictable. Those affected by it can foresee how the court will apply it, and arrange their affairs accordingly. The American Justice Oliver Wendell Holmes Jnr. went so far as to suggest that this predictability was the very essence of law. He said: “The prophecies of what the courts are likely to do in fact and nothing more pretentious are what I mean by the law”[23]

The rule of law itself depends on this predictability. Lord Diplock said:

“The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.”[24]

The same principle of legal certainty applies to European Community law. The principle has been called a pillar of the European Union[25] and has been applied since the early days of the EEC. The Court of Justice of the European Communities has ruled that overriding considerations of legal certainty preclude legal situations which have exhausted all their legal effects in the past from being called in question where that might upset existing schemes retroactively[26]. The drafting of an EU legislative act is required to be “precise, leaving no uncertainty in the mind of a reader”[27].

As one would expect, the principle of legal certainty also applies to the European Convention on Human Rights. It has been said that the principle is common to all the articles of the Convention and is “a basic building block of Convention jurisprudence”[28]. It is unfortunate that the principle does not

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apply, in fact as well as theory, to the actual wording of the Convention.

Back to Gordon and Lucy

I suggested above that, because the House of Lords decision in R. v G. demonstrates that article 8 is uncertain, it shows it up to be bad law in a formal sense. In other words, its law quality is poor. The same applies to many other articles of the Covenant, and indeed to the various similar loosely-drafted treaties that now bind us. For example article 31 of the United Nations Convention on the Rights of the Child says: