Category: Law Reform

Birthing and slaying quangos rationally

A quango founded in response to a newspaper shock headline, tomorrow’s chip-wrapping, needed only to the end of the news-cycle. It may still exist in undiminished vigour when some traveller from New Zealand shall, in the midst of a vast solitude, take his stand on a broken arch of London Bridge to sketch the ruins of St Paul’s.

Parliamentary practice to establish public bodies is ludicrously complex and accordingly abolishing or reforming them is complex. The usual practice is for an Act of Parliament to set out at length, over several sections and schedules, every aspect of the new body’s constitution, typically in exactly the same terms as every other quango. Consequently alteration or abolition requires another Act, laboriously pushed thrice through each House over a course of months.

A logical approach would be either to leave it for the relevant minister to constitue a body, or to pass one Act which lays down a general code for all future public bodies, so they can be created, and ended, in a single line. It is obvious logic. The Parliamentary Counsel, learned as they are, are not known for simple logic.

Anything created by any Act or instrument as a ‘public body’ shall have the following characteristics and be constituted as follows…..

Then any new Act in response to the latest news cycle can say “There shall be a public body called X“, and not fell a Norwegian forest describing it.

In the same way, Parliament should enact a general code for abolition or merger of a body, and achieve it each time in one line.

It would help if we knew what and where all these bodies are. I have urged that they all be registered at Companies House, with all members and accounts, and that none should be permitted to receive money unless registered. One could go further: if a private company is late with its filings it gets a warning and is then dissolved. I would not quite advocate that for bodies commanded into existence by Parliament, but such a failure could suggest redundancy and trigger a process towards abolition.

Quangos come and should go but are tenacious in justifying their own continuance, or growth and transformation into a new body; the same but with a new name. Greater Manchester County Council was created in 1974, abolished be an Act passed eleven years later: its residuary body lasted until 1989. The London Residuary Body endured for over eleven years. Someone was paying their salary, so why not make the job last?

The complexity of dissolution or merger discourages it. There is no need for the complexity.

If a private company is dissolved, there are known procedures laid down in the Insolvency Act, the Companies Act or the Friendly Societies Act determining how a company may dissolve itself or be dissolved, or merge, or be transformed, and then what happens to the assets, how creditors are paid and so forth. It is a rational set of procedures. Every high street accountant and lawyer is familiar with it. It is astounding that there is not the same sort of established procedure for quangos. Apply to public bodies the same code or an analogous one, and then a body may be dissolved by Parliament or the Minister with at a word.

Without such a procedure, quangos are left to muddle on redundantly, finding work for themselves, drinking taxpayers’ money and getting in the way, because it is easier to leave them there.

Registration would make it easy to identify quangos and who is responsible for them: having identified them their redundancy is more easily detected.

These are matters which can be achieved with a Powers and Bodies Act: codification, rationalisation and registration.

A new codifying Act would not just by all this sweep unwanted quangos away. It still needs positive ongoing action to identify and eliminate them.

To motivate quango members to finish the job so they can be abolished – that is the challenge. How to you motivate turkeys to vote for Christmas?

The first thing would be to give each a maximum lifespan. It could be a life ending when set tasks are achieved, but will just encourage them to delay finishing the work, which is the last thing you want. A fixed duration would concentrate in the minds of staff that they are out on a certain date, so they will be looking for new jobs as the date approaches, and are encouraged to finish the work properly to get a good reference. The Code could leave a slot to fill in a maximum duration.

For indefinite quangos, with no obvious term as they have a long-term mission, there is no termination date. They nevertheless will often fade into irrelevance: they may be kept on their toes by the threat of sudden abolition. A review process across the whole of quangoland – a proper one, with an assumption of abolition – is needed. It could only be effective though if the Code establishes a simple method of legal abolition. As long as each quango has its own private Act of Parliament and no way to be simply unwound, it can sit back and bask in its own immortality.

See also

Books

Not where to lay his head

With no roof beneath which to lay their heads and a child imminent; a familiar theme of Advent, traditionally remembered  on the third Sunday of Advent. What of those who are not remembered though?

The foxes have holes, and the birds of the air have nests; but the Son of man hath not where to lay his head.

In December as the ice grips, the reminder is more stark of those left outside what most of us find natural – left in what you may observe to be the natural condition of mankind. It is not just those on the street but those insecure, uncertain wanderers on the face of the land. One is begging friends for a sofa to sleep on; one is weeping in a council housing office; one is in the fag-ash reek of a labourers’ dosshouse; one is in a cheap flat and dying of it; one is dulled into selling herself. They must not be forgotten.

Churches then have reminded their congregations of the forgotten and then ask what can be done about it.

They know what they can do about it. We know how to save people from homelessness and  from “continual feare, and danger of violent death”. It is this: look after yourself and your wife or husband; work hard to earn and pay your way; care for  your children and prepare to provide for them when you cannot; teach your children to be self-reliant as you have. That will keep you from that condition and keep your children from it too. Without that, it would not be a few lost souls in the frozen street but the whole generation. Love, work, nurture: looking around the congregation, everyone there could say with justification “all these have I observed from my youth.” Do they need to understand any more?

Dickens had many a sharp observation of those who neglect their own families in pursuit of lofty, charitable goals, the more distant the better. It is not virtue but distraction from the immediate duty to family, because family is the first, primary way to prevent poverty and homelessness. No law howsoever well-intentioned can be so effective.

Therefore, before reformers even think about laws and bureaucracies and taxes, they must realise that the solution (for almost everyone) is what every family knows, and that is the most valuable assistance, which must not be damaged in the rush to help the few who remain unsupported.

For those outside the ‘family commonwealth’, they are vulnerable, and if the state takes on its role as carer for the uncared for, they are a chief concern for this charity, without forgetting those supported by themselves.

The vulnerable then fall to dependency of force, not love.  This dependency is terrible. It may provide comfort for immediate needs, but honest reformers should seek to lift their subjects from dependency also, unless in their minds they want a sub-class of serfs controlled by the state. The state has no love, and little motivation to improve the crumbs they provide.  The lad who died lately in a mildewed apartment was in a housing association provision, not a  flat let by a private landlord who has a motivation to keep his property from moulding away.

It is a noble thing to care for the unfortunate, and in particular for the homeless, and you may ask how things might be improved. However, it is not just the few – the potential number of homeless in this land is sixty-eight million. We are only ever a generation away from  reverting to the Stone Age, in which mankind lived from 95% of our age on Earth, as Syrians have found. To care for those who may be homeless, first realise that your own comfort is unnatural: praise God for these blessings and look after your children so that they are blessed too.

See also

Books

The Bill and the Rights

Today a reform promised some ten years ago appeared before the House of Commons: the ‘British Bill of Rights’ promised back in David Cameron’s time, a promise promptly ignored. It is a scrap of the red meat promised to the backbenches, and another rare thing to see: something the Manifesto promised us actually being done.

This is the ‘Bill of Rights Bill’ (which will become if passed not the ‘Act of Rights Act 2022’ but the ‘Bill of Rights 2022’).  It is not the first Bill of Rights: we have the Bill of Rights 1688 and the Claim of Right 1689  still in place.  They are grand but practical declarations of freedoms we now take for granted without thinking of them.  The new Bill is certainly not that, and is unworthy of the name of its forebear. It may be just what was squeezed out of a committee. That is not to criticise it: the Bill does what has been trailed, as a practical tidy-up, not a new order.

Don’t expect to get excited by the new Bill of Rights – this is not 1688 nor 1789.

The first thing is that the Bill repeats the rights set out in the European Convention des Droits de l’Homme (not every Article, as many are introductory or concern the court in Straßburg), but all the actual rights are recited.  Blair did it by just referring to the Convention as a known thing – this Bill sets the relevant Articles and Protocols out, which is the normal and proper way for Acts of Parliament incorporate treaty conventions.

‘Which rights do you disagree with then?’ is the usual (understandable) accusation thrown at those who rail at Strasbourg law. The answer here is ‘None: the rights are all exactly as we would have them – it is just the interpretation which is a problem.’

The issue with the rulings pumped out by the European Court of Human Rights in its ivory tower in Straßburg is that it has declared, of its own authority, that the Convention does not mean what is written plainly in the text but is a “living document” to be interpreted widely according to the changing spirit of the age, or at least the spirit of the sort of people who sit as judges. This ‘living document’ doctrine allows them to disregard the parts they do not want and to invent entirely new rights that would not have entered the heads of those who agreed it. The Bill is meant to deal with that.

It does look mean-spirited: having recited the lofty liberties, the Bill then takes aim at rulings which have prevented the expulsion of foreign criminals, in particular the ‘family life’ argument (which is a self-fulfilling argument: land on the beach, smile at a local lass, and you are immune from expulsion, or so it has been alleged). It clears up other little annoyances too: there is no claim for things the armed forces do on active service outside the British Islands (they might think about adding ‘or British overseas territories’ there, but a certain ‘Death on the Rock ruling still rankles).  All these are in essence replies to outrage on the pages of the Daily Mail and from Priti Patel’s office.

In the same category you might place the odd Clause 4, on Freedom of Speech, that “a court must give great weight to the importance of protecting the right”. Yes, good – but will the court not be giving great weight to all Convention rights?  This needs some beef, like repealing existing laws on offensive or distressing speech, or specifically protecting against discriminatory treatment those who express dissent on political or social matters. It is not there. The clause sets out to do good, then fizzles out. Perhaps it was sent to a civil servant to do and he responded “Do I have to?” and put in a minimal job of work.

It does mention trial by jury as the way we do fair trials in this land.  It does tell courts not to demand the disclosure of journalists’ sources unless the really want to. That is thin gruel for a Bill which could have been used to bring in a newly libertarian age.

If this Bill were serious about entrenching liberties, it would not be so cowardly: if it were serious, it would go through all illiberal legislation since the Blair years and strike them down. It does not.  It fizzles out.

See also

 

Levelling, locality, labyrinth

The showpiece of the Queen’s Speech is the Levelling-up and Regeneration Bill. It is just the sort of measure which should have been taken many years ago, at least in Part 1. The rest of it has the appearance of a jumbled-together bag of ideas, which perhaps had been sitting in a back drawer waiting for a Bill to jemmy them into, giving the look of sections far too hastily put together. It is really four or five Bills stuck together in a vaguely coherent manner to put it generously.

That is not to say that the individual ideas are poor, but they are hurriedly put together, when they deserved better, individual consideration.

Most of the Bill is to be welcomed. The Part I general duty on government to address regional disparities has been talked about by every shade of government for as long as I can recall, but never set out in quite this way. I could say that this duty is a Hobbesian necessity, after all:

The safety of the People, requireth further, from him, or them that have the Soveraign Power, that Justice be equally administred to all degrees of People; that is, that as well the rich, and mighty, as poor and obscure persons, may be righted of the injuries done them; so as the great, may have no greater hope of impunity, when they doe violence, dishonour, or any Injury to the meaner sort, than when one of these, does the like to one of them: For in this consisteth Equity; to which, as being a Precept of the Law of Nature, a Soveraign is as much subject, as any of the meanest of his People.

No one region has any more call upon the benefits of government than any other, which would constitute as Hobbes might put it, πλεονεξία, and for the state to grant it would be προσωποληψία.

There should be no need to spell such a duty out, because the government should always act in that way, but forcing the civil service to produce plans may actually change something. This essentially leads on from the “union agenda” intended to end accidental disadvantages which businesses in Scotland and Ulster suffer because of thoughtlessness in the way that regulations are drawn up.

Part 2 is a mess though. This one could be excised from the bill without harming the rest. It would be given better thought in a bill on its own. In this position it jumps into an already ramshackle system and makes it even more incoherent. Part 2 will create yet another new form for local authority, the ‘combined county authority’: why they call it that when the area can bear no relation to any county is perhaps best answered by assuming it was given little analytical thought.  These new bodies will be appointed by existing councils, plus additional members chosen by the councillor-members, or by bodies they nominate to nominate members, and to give them a purpose, powers will be stripped from local councils and granted by the minister, individually.

This blog has argued before – see “Now for LGAxit” – that the systems of local government are so complicated and so far removed from the assumptions underlying the Local Government Act 1972 that the Act should be wholly repealed, immediately, and replaced by one which reflects reality. Changes over the last decades have accelerated, each one making an exception to the requirements of the 1972 Act – so now it is a chaos of clashing and contradicting provisions, and when we have the new Part 2 (which only marginally coherent itself) then it will be intolerable. When the exceptions from the rule are more common than the original rule, as we have today, then something is wrong with how things are being done – when the assumption is that the original rule  will not apply then it is no more than a legal fiction, and you need to start again.

Mr Gove should not be tinkering at this stage: he should be repealing the old Act and getting a new one.  The new Bill just emphasises it all the more.

Furthermore, the terminology gets in the way of the intention. by suggesting that the new combined areas are in some way “counties” is to bring resistance to them. There is no way that a collection of governmental areas enrolled for mere convenience can be the equal of Yorkshire or Cornwall or Surrey or any of the famous counties of the realm. By choosing that one name, “county”, it suggests to local folk that own own, ancient places are being taken away and replaced by an ill-shapen imposition, and the resultant resistance will hold the plan up.  It can be saved by changing that one word to another, say “combined strategic areas”, as that seems to be what they are, or just “combined government areas”. The Ministry do not know how to make it easier for themselves.

There is a great deal to be said for the Bill, and the many elements  have not even touched upon, but the wise heads need to change Part 2’s self-defeating terminology, or remove it to work on later in the context of ‘LGAxit’ and a rationalisation of local government systems.

See also

Books

A new programme, and how to mend it

The list of Bills announced in the Queen’s Speech is tired and uninspiring. Much has been promised before and the question must be why it has taken so long. My concern though is where some of these measures could go awry, and whether they should be neutered or tipped into the long grass.

The Online Safety Bill is a revival of one which has been discussed here before. They could get it right, but so far it has been all wrong. This is a pity, because a good, limited law could be a benefit to vulnerable people, in particular teenage girls and flaky young men, of which there are many.

The Bill is meant to have a mechanism by which consumers may challenge an online forum which blocks them, though it is always open to a platform to set its own rules:  you would not expect for example a forum for vegetarians to allow me on there to promote the health benefits of beef.  However there are competition issues, and these should be a matter for government concern:  if a social media platform wants to limit discussion on any issue, it may do so as a private company, and the consumer’s remedy is to go off to another platform, but if all the main players adopt a common position, that is a restrictive trade practice.  This is a real risk: Twitter could legitimately block Donald Trump when they chose, but when other media companies blocked the operation of an alternative forum that he used, that was a restrictive practice. The sorts of things said by vengeful ex-presidents may turn the stomach but there cartels may not build a wall to prevent legal expression. Can the Online Safety Bill or the Media Bill deal with these competition issues? They should do.

My attention was drawn recently to action by the British Board of Film Classification imposing an ‘Adult Content’ filter on a website (conservativewoman.co.uk) – a site too much given, I must say, to irresponsible vaccine conspiracy ideas, but ‘Adult Content’? Surely not. It may be the section in the Board’s rules on ‘discrimination’, which is wide open for activists to abuse. Mobile companies en masse use the BBFC blacklist, and if such a cartel is tolerated then it must again be subject to rules to prevent anti-competitive practice.

The Renters Bill has been looming for years, and I have discussed its ideas before.  They are bad ideas, which will hurt the very people they are intended to benefit. If tenants cannot be removed, landlords will get out for the game, there will be fewer flat available and rents will rocket. Furthermore, a landlord will be unable to empty his property to improve it and get a better rent, so the quality of homes will decline.  Only slum landlord’s with thugs ready to enforce their word will thrive.

There is also the benevolent promise of an ombudsman for disputes. This position will fall to institutional capture by activists.

On the other hand, the bill, we are told, will “reform possession grounds for landlords” – maybe the right to remove tenants to improve the property can be retained.

Whatever the government have in mind, they must cast out the demon whispering in their ear – Shelter, an organisation which once did good and is now, regrettably a fake charity pushing a malevolent political agenda.

The Bill of Rights would take a series of articles on its own. The Grauniad has condemned it unseen as a tyrant’s charter, as it would: the Grauniad‘s enmity is generally a promise of a good thing. We shall see.

A programme of increasing individual freedom might have been expected as a reward for sitting out the intolerable lockdowns, but there is little sign of it here, yet.  There may be ways to mould these bare titles and proposals so that we end up more free.