Chaotic Coroners and Justice Bill reels into view
Net suicides, gay rights, data transfer - it's all here
Comment While the question of whether cartoon images of children should fall foul of the law has aroused debate, the recently published Coroners and Justice Bill contains more than a few changes that may prove just as controversial.
A reaffirmation of the penalties for anyone "aiding or abetting suicide" via the internet is one such measure. Then, too, there is the attempt to remove a recently passed "opt out" to the Law on incitement to hatred on grounds of sexual orientation.
The same bill also includes provisions previously covered by The Register enabling easier transfer of personal data between government departments, plus provisions about the use of video recording in respect of sex offences. Removal of the defence of provocation in murder trials is in there, nestling alongside regulations in respect of the finding of "treasure"... And on and on.
Winding its way through 160 clauses, 21 schedules – not to forget some 993 paragraphs of explanatory notes – it is a "pic'n'mix" approach to law-making, lurching from measures that impinge on our most fundamental rights (such as the clauses on data-sharing) and back again to the fussy and trivial such as retention of knives seized by court officials, or reduced sentences for disqualified drivers who agree to undertake training.
Does it all matter? Purists may point to the elegance of legislation such as the Obscene Publications Act 1959, whose five simple clauses tidied up the law on that subject and put in place the framework that governs obscenity to this day. Is this mere nostalgia, out of place in the 21st century?
There are two criticisms of this style of law-making. Many of the topics covered in the CJB (not to be confused with the CJIB, which was last year's legal gallimaufry) are dealt with in terms that are every bit as succinct as the OPA. But they do not provide a single narrative.
Law-making is not literature - it doesn’t need to follow a straightforward plot. As a spokeswoman for the Ministry of Justice said: "These are the subjects the government wishes to legislate on and this is the vehicle chosen to do it."
Sticking loads of unconnected measures into one Bill saves on parliamentary time and overhead. That is because there will be a certain number of days debate allotted per Bill, and a single body appointed to review its provisions at Committee Stage, providing economies of scale.
However, this also makes it far more likely that serious issues will be passed without adequate debate – either because their significance is missed, or because Parliament simply runs out of time. This happened to the final debate on the CJIB last year, as a deadline for passing the Bill was driven by an impending industrial action by Prison Officers, and large chunks galloped through Parliament without debate or were dropped at the last minute.
The second issue with this kind of law-making is that increasingly it reads like a management guide - legislation establishing the Contactpoint Database includes a section that more closely resembles a database spec than actual law. Clauses in this Bill on provocation and setting down what counts as a "qualified trigger" have a similar ring to them.
It is impossible to do (ahem) justice to this Bill here, or even to know where to begin. Those concerned about what is being done to their rights should take the time to read it in full.
The measures on suicide websites (s46) are fussy and do little more than send a signal to ISPs that suicide sites are indeed covered by current law. The measures on data-sharing (s152) are absolutely fundamental, and almost certainly reflect the fact that the drive toward e-government has been ahead of the Law.
When data was lost in transit between the Tax Office and the National Audit Office, many commentators were quick to denounce flaws in government security. Far fewer picked up on the point that such a transfer was possibly itself illegal under current Data Protection legislation.
The change to the law on homophobia (s58) is ostensibly aimed at religious groups, who have claimed the right to discuss their traditional objections to homosexuality, without that discussion being criminalised. No more, if this Bill becomes law, as it is aimed to remove a section of the Public Order Act 1986 which permits "discussion or criticism of sexual conduct or practices".
Do we hear hollow laughter from those about to be criminalised because their own sexual (sado-masochistic) orientation is not one that is politically acceptable to this government?
Inevitably there are areas that will lead to more polarised debate. The removal of the defence of provocation (s41) will please those outraged that certainly in one and perhaps in more recent court cases, it was held that years of "verbal abuse" (which some have played down as no more than “nagging”) made a valid defence where a man had killed his wife.
Against this is concern that this is tying the hands of judges on the basis of a couple of very exceptional cases: the executive yet again removing judicial discretion in an area where it is already agreed that parliamentary interference has created serious issues.
Then there are chilling provisions to provide greater immunity to those who "co-operate in the investigation of crime" (s96) by informing on their fellow criminals.
Last word - for now - goes to former Shadow Justice Secretary, Dominic Grieve. He said: "This is the forty-eighth criminal justice bill under this Government and it already amends provisions not yet in force from the last Bill, enacted only eight months ago.
"Once again Ministers have produced a rag-bag of measures. While some are welcome others, including the resurrection of plans for secret inquests, we have serious concerns about." ®