The UK Internal Market consultation

Little heralded perhaps, but important, the Department for Business, Energy and Industrial Strategy has issued a White Paper entitled “UK Internal Market” and the need for it shows how far we have come, backwards mainly that this is an attempt to fix it.

It is a symptom of the regulatory state that we even have to consider the subjects in the White Paper, but as our commercial life is mired in bureaucracy and unlikely to crawl out any time soon, the effect of that bureaucracy to impede business is being looked at, in the context of a possible fragmentation of rule-making that could stop seamless operations of business across the United Kingdom, as has been enjoyed since 1707, and 1801.

Britain left the European Union, thank goodness, on 31 January this year, and the co-ordinating rules of its Single Market are dropping away. At the same time, those political parties which campaigned to keep powers in Brussels, now demand that those powers be handed to the devolved authorities, so they can make a right hash of it, but more to the point, the paper raises the point that a divergence of standards and licensing regimes would lead to companies’ having to produce different goods or labelling in different parts of the country, or limit their business to one corner of the land.

The worst aspect politically is that devolved authorities, being controlled by hostile opposition parties, will be driven to differ from the rules in England for political reasons and despite the interests of those affected by the rules – businesses and consumers. The paper only hints at that, but we can read between the lines.

It is a paper of 105 pages, largely because it constantly repeats itself, but that should not be harsh criticism, because after the many opening pages of fluff (which I would have written very differently), it comes to the main points for action: a non-discrimination principle and continual input by affected businesses. Both are excellent principles. Both should be used not only to squash future divergent burdens but also existing ones.

Four questions are raised, summarised as:

  1. Should the government seek to mitigate against both ‘direct’ and ‘indirect’ discrimination in areas which affect the provision of goods and services?
  2. What areas do you think should be covered by non-discrimination but not mutual recognition?
  3. What would be the most effective way of implementing the monitoring of the Internal Market and business and consumer engagement and should particular aspects be delivered through existing vehicles or through bespoke arrangements?
  4. How should the Government best ensure that these functions are carried out independently and are fully representative of the interests of businesses and consumers across the whole of the UK?

They are good questions. The fact that these questions even have to be asked is worrying, but they do.

The questions need input from those who understand their own businesses, and by all accounts the government will actually listen to them (which will be a Cummingsesque shock to the Civil Service, if they do not find a way to frustrate it). The White Paper indeed contains examples and quotes from businesses showing that a good consultation has already begun.

There is little time to respond, with observations and even ideas. This should be shaped by the reality of business – I was going to write “and not ideology”, but that is impossible.

These subjects may have to be the subject of more articles on this site, adding to those previously published.

Link to the White Paper

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The Constitution, mice and “yes but”

The word “reasonable” is an enemy: it acts as a codeword opening any decision to challenge. Parliament may think that it is creating wise structures and granting powers to those entrusted with the task, but a structure which has within it “reasonable”, or any one of a number of such tripwire words, is as if the bricks were mortared with porridge.

This is not a subject of grand constitutional reform, but it is what will cause reforms to fail. The pettiest words concealed within an Act or Statutory Instrument can hobble the constitutional intent, so the practices which insert those words are indeed constitutional in their effect, and a consideration of constitutional reform must look at reforming the practices of draftsmen.

Discussion of the topic must sound like a rank about minutiae, but while the intent reformers build mighty edifices, it is these mice which undermine the whole, so if what follows sounds like a rant, so be it.

Taking one popular bugbear as an exemplar: the immigration and nationality rules. The relevant part of the Act of Parliament concerning the grant of British citizenship starts robustly enough, saying that no one is entitled to citizenship unless they have lived in the United Kingdom for three years, and that it is for the Home Secretary to decide whether to grant citizenship. If it went no further then the system might actually be robust. However the wording goes on in a worried tone, and has a “yes but”; the decision must take account of X and Y and Z, that there must be no discrimination of nationality (or the usual list).  That was well meant, but it puts such a wide crack in the Home Secretary’s alleged discretion that any decision is turned over to the courts, such that the rule is not “if the Home Secretary is gracious to grant it” as the plain words say but in effect “always grant nationality after three years unless the Home Office has a rock-solid reason against this individual”. Therefore a small proviso has reversed the meaning of the section.

The word “reasonably” is not a convenient throw-away line:  it means there must be reasons and reasons that will be examined in court.  “In her reasonable discretion” is not “the Home Secretary may decide” but “she must follow a quasi-judicial procedure”.

If a decision shall be made “in all the circumstances of the case”, that is not a fluffing wording: it is an instruction that the decision-maker must be prepared to prove that they looked at all possible relevant considerations, or for any missed point their action will be struck down.

If we broaden our view away from Marsham Street, Acts of Parliament which deal with administrative matters are mountains of pushme-pullyou, granting powers and then taking them away with the same hand. Where politicians express despair at the way courts too readily quash acts done in good faith, the first place they should look is their own practices in authorising them only half-heartedly.

It is not (always) the fault of the judges.  If an Act of Parliament leaves the door open, the lawyers will wander in and help themselves to the larder.

All that said, limitations on powers granted are justified. If you give councils the power to close a road, they must be required to tell the residents, and not to block both ends.  If they have power to impose parking restrictions, it must be for the purpose of easing congestion, not to raise revenue. Councils have power to decide planning applications, but that power is greatly restrained, so that they must act quasi-judicially, must exercise their power with a liberal mind and for proper reasons and according to expectations, because this goes to the heart of rights of property and enterprise. In that case you must expect planning powers to be exercised with excessive care and to be challenged in court, as they are.

Where a statute does give exercisable power, it is given and its limits are defined to ensure the public benefit, but those entrusted with that power will not be able to exercise it to the full extent it is given, because they must be sure of the legality, after advice from a worried lawyer. That betrays the breadth of the original authorising statute.

Some statutes, as I observed, must be curbed around with limits. In other cases though, vague or cautious wording in an authorising statute can mute the powers it is trying to give. If the Home Secretary is to be empowered to control immigration and to grant or withhold citizenship, the wording must be tight and not subject to provisos, however well meant, in order that she can exercise that power or refuse to exercise it, at her complete discretion.

I will at before too long get on to more meaty constitutional topics. I would urge as an integral step though a brutal review of the drafting practices applied in Westminster and Whitehall.

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The Constitution: mice undermine the wall

A Constitution, Democracy and Rights Commission is a thing around which many projectors will orbit with their ideas, but the brief outlined in the Conservative Manifesto was short, and from Number 10 the challenge is finding what a commission with such a grand name is to do, and what it will not.

There are some big headline issues, like the Fixed Term Parliaments Act, an questions about reducing the number of members of Parliament (the latter already kicked into the long grass). Reducing the House of Lords and winnowing its membership may be discussed. Reform of judicial review is on the cards, but even that is a limited intervention. I have written about that subject before. and will again, but I want to think about the subjects beneath the headlines and which underlie, or undermine, all that stands above them.

There are many points to look at in other articles, but since a frequent topic of concern is judicial review, I may start by looking at the failings which make judicial reviews happen.

As I have observed before, judicial review is rare and applications are rarely successful – about 1% get to and succeed at trial. If it were not for bulging teams of lawyers crawling over every proposed action, there would be more. However it should be worrying that a public authority, having been granted powers for the public benefit, cannot actually exercise those powers without being supervised by a costly legal team. It is as if to grant the power and then take much of it back again.

The issue is a constitutional one: power legally granted yet being hampered by other constitutional reasons. The fault though is not constitutional as such: it is the way in which powers are granted half-heartedly by Parliament, and that is a fault in part from bad habits encrusted over the generations, but also from timidity. Those who prepare Bills and SIs live in fear of criticism if they think too much, and the politicians live in fear of criticism if they leave any gap through which blame may fall. Wee, sleekit, cow’rin, tim’rous beastie, O, what a panic’s in thy breastie! Between these, faltering instructions are given which stifle innovative practice and leave decision-making uncertain unless the decision-makers play safe, which contradicts the width of the powers given.

I will return to this with more particularisation later.

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Is the Housing Court dead?

Two threads were being spun before the election, in fact during the May ministry, on changes to housing law, and both were bad ideas.  One was to abolish assured shorthold tenancies retrospectively, or as the spinners put it to ‘end no-fault evictions’. The other was to establish a new Housing Court.  The former got through to the Conservative and Unionist Manifesto and to the Queen’s Speech.  I looked at it some months ago intending to revisit it:

The second thread, creating a Housing Court, has gone rather quiet, with the occasional squeak being heard.  A consultation process began at the end of 2018 from the Ministry of Housing, Communities and Local Government. The Law Society were opposed and other bodies responded just by talking about resourcing (or in plain terms, wanting more taxpayers’ money). Is the Housing Court then dead?

The idea of  a dedicated Housing Court is understandable but flawed in concept for three reasons:  first of all it not only putting the cart before the horse, but is failing to include the horse at all; secondly, it will be subject to interest group capture; thirdly, it does not address the major issue.

There is a genuine, deep-seated problem with the current system, and if you doubt that I recommend sitting in a county court office all day.  You may frequently see a strong man break down in tears as his case is adjourned yet again and another month’s mortgage payments are to be made while no rent is coming in and no remedy is forthcoming. The tenant is thumbing his nose at his landlord, paying no rent and may be wrecking the flat so as to make it unlettable, but the landlord cannot do anything.

Some urgent action is needed.  A Housing Court is the wrong action though.

Cart / horse

The fundamental flaw in housing law is that it is complex, hard to find and self-contradictory.  The only experts are those who practice constantly in the field.  There is no single, comprehensive code of housing law.  Instead, innumerable Act of Parliament and statutory instruments have to be read together, and anything read in an older statute may have been replaced by a later one, or even by a section retrospectively inserted into an even older Act.

Typically an Act is passed after a report or a scandal calling for action and may be focussed on a particular list of mischiefs or alleged problems, adding a new complexity rather than smoothing the landscape.

There are contradictions, and inconsistent approaches, which is unsurprising given the piecemeal way in which the law is made.  This inconsistent and incomprehensive branch of law is the fundamental problem which landlords, tenants and courts face, and no new court should be put in place until it has coherent law which it can administer.  If though the law were rationalised, then there would be no need for a new court.

Interest-group capture

Interest group capture befouls many worthy endeavours.  It is a form of regulatory capture, by which a particular lobbying body or interest group takes control of a regulatory or judicial function, and a new Housing Court would be an open target.

The pressure for a new court has come from frustrated landlords, finding their claims for rent and possession pushed back in a queue of other cases The idea has indeed been attacked by tenants’ groups as a landlords’ weapon, but we would soon find that the system is captured by the opposite interest.

The body representing Citizen’s Advice Bureaux saw the idea as creating a landlords’ court and advised that “the power imbalance between landlords and tenants could be made worse”. Shelter, more interestingly, were positive on it (as long as they are given more taxpayers’ money), which alone should make us suspicious.

The idea may be to staff a court with those who spend all their time in the field so as to become experts. However the staff must be recruited, and applications will of course come from those with a particular interest in the field, and successful candidates will be those with long practice acting for tenants.  It needs little imagination to guess the socio-political tendency of the main applicant base, and who will in due course form the interview panel.

There should not be an ideological divide between pro-landlord and pro-tenant as if they were different creatures. Justice should be a neutral forum applying the law even-handedly between individuals, not classes, as it is in the general courts. However in a specialist court that ideal is distorted. The false narrative of eternal class-war is embedded in many and it has informed the shaping of the statutes defining housing law (to the extent that it they have any discernible shape). This idea of opposing, class-based sides will shape the mindset of those seeking to work in any new single-issue court.

The judges may remain fair and neutral, but they are influenced and briefed by their support staff. Then as each decision forms a precedent for the next, the direction of the court as a defender of tenants against their landlords will become institutionalised.

Fundamental toothlessness

A third issue was identified by the Civil Justice Council, which opposed the creation of a specialist court:  the judges currently do understand the law and do apply it justly, but there is poor enforcement.

A thing little spoken-of in the law is that effective landlords are those who ignore the law and evict tenants in ways it does not countenance.  Therefore good landlords are penalised by the Housing Acts for the failings of ruthless landlords, but ruthless landlords are less bothered.

Essentially, if the court eventually orders an eviction, the process of removing the tenant is slow and expensive.  There are too few bailiffs and getting an appointment takes too long, and the bailiff’s costs (and those of a locksmith) must be paid by the landlord already impoverished by months of legal proceedings.

Without enforcement, the courts are no more than vanity.  It is a neglected field though:  those concerned with civil justice do not want to look at the sordid business of actually laying hands on a man and hurling him from his erstwhile home. That is what the whole procedure is there for though: to authorise the landlord to get his own property back. Without that step, all the bewigged judges, clerks, staff and lawyers are pointless.

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The Abilities required in a Judge

The abilities required in a good Interpreter of the Law, that is to say, in a good Judge, are not the same with those of an Advocate; namely the study of the Lawes. For a Judge, as he ought to take notice of the Fact, from none but the Witnesses; so also he ought to take notice of the Law, from nothing but the Statutes, and Constitutions of the Soveraign, alledged in the pleading, or declared to him by some that have authority from the Soveraign Power to declare them; and need not take care before-hand, what hee shall Judge; for it shall bee given him what hee shall say concerning the Fact, by Witnesses; and what hee shall say in point of Law, from those that shall in their pleadings shew it, and by authority interpret it upon the place.

The Lords of Parlament in England were Judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the Lawes, and fewer had made profession of them: and though they consulted with Lawyers, that were appointed to be present there for that purpose; yet they alone had the authority of giving Sentence.

In like manner, in the ordinary trialls of Right, Twelve men of the common People, are the Judges, and give Sentence, not onely of the Fact, but of the Right; and pronounce simply for the Complaynant, or for the Defendant; that is to say, are Judges not onely of the Fact, but also of the Right: and in a question of crime, not onely determine whether done, or not done; but also whether it be Murder, Homicide, Felony, Assault, and the like, which are determinations of Law: but because they are not supposed to know the Law of themselves, there is one that hath Authority to enforme them of it, in the particular case they are to Judge of. But yet if they judge not according to that he tells them, they are not subject thereby to any penalty; unlesse it be made appear, they did it against their consciences, or had been corrupted by reward.

The things that make a good Judge, or good Interpreter of the Lawes, are,

  • first A Right Understanding of that principall Law of Nature called Equity; which depending not on the reading of other mens Writings, but on the goodnesse of a mans own naturall Reason, and Meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon.
  • Secondly, Contempt Of Unnecessary Riches, and Preferments.
  • Thirdly, To Be Able In Judgement To Devest Himselfe Of All Feare, Anger, Hatred, Love, And Compassion.
  • Fourthly, and lastly, Patience To Heare; Diligent Attention In Hearing; And Memory To Retain, Digest And Apply What He Hath Heard.

Leviathan, Chapter XXVI: Of Civill Lawes

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