Coroners & Justice Bill chewed a new one by opposition
Mostly duff: Too few plums
If you seek a textbook example of how not to draft law in 21st century Britain, then look no further than the Coroners and Justice Bill which emerged from committee stage last week in the House of Commons. That’s the pretty unanimous view of both Conservative and Lib Dem MPs, whose job it was to wrestle with the intricacies of this legislation over the last few weeks.
Meanwhile, the back story to the government's loss of its widely-criticised data-sharing proposals reveals a great deal about how personal political agendas have now broadly overtaken the consultative process.
Let's start with the good news: after a severe mauling both in and out of committee, government powers for unhindered interdepartmental data swapping (clause 152) are now back to the drawing board. The bad news is that increased powers for the Information Commissioner may have gone the same way: and no one is betting on these proposals not returning, tacked on to some other legislation in the autumn.
As Edward Garnier noted, "Jack Straw told the Sunday Telegraph, but not parliament, last weekend that he was dropping Clause 152 in the face of massive political and public opposition - but he is likely to stick something similar back into the Bill at Report.
"Once again the Government will face massive opposition in Parliament and outside... so they will need to come up with something radically different and far less threatening to individual liberty and civil rights if they are to get the Bill through."
However, there may be more to this story than meets the eye. We spoke to No2ID, who have been watching the slow evolution of this proposal. Their spokesman told us that "Transformational Government" - the idea of improving public service by kicking down practical and legal barriers to use of data - has long been a New Labour obsession.
There was the Varney Review (pdf), which waxed lyrical about the topic; MISC 31, a Cabinet Committee dedicated to bringing it about; and the Service Transformation Agreement (pdf) which clearly sets up the Ministry of Justice in pole position to lead "a cross-government programme to overcome current barriers to information sharing within the public sector".
However, everything tracks back to No 10 - including the Walport-Thomas Data Sharing Review. According to No2ID's claim, the Information Commissioner received a phone call informing him of this exercise at 6pm the day before the "consultation" went live. In other words, a tick-box exercise, rather than any genuine commitment to public involvement.
A recent avalanche of public and professional criticism has scared Labour backbenchers, who see nothing in these proposals for them. Jack Straw reached a similar conclusion. So another of Gordon Brown's pet projects bit the dust.
On the Bill as a whole, the Tory Shadow Minister for Justice, Edward Garnier MP (and QC) did not mince his words. He told us: "Like so many criminal justice bills brought forward by this Government the Coroners and Justice Bill is a statutory mess, a plum duff of a bill with very few plums and a huge amount of duff."
This pretty much reflects our own analysis back in January.
"How can it be sensible to come forward with yet another vast Bill which deals with far too many discrete subjects ranging from coroners’ courts and secret inquests through provocation and diminished responsibility in homicide, reform of the law on assisting suicide, anonymity in police investigations and for witnesses, the treatment of vulnerable witnesses through the use of special measures in court such as video and live link television, adjustments to the law on bail, free speech and homophobic hate crime, the creation of a new sentencing council and measures to deal with the sentencing of dangerous offenders, legal aid, the exploitation of criminal memoirs, and data sharing."
Not to mention the new cartoon law (which we cover in greater depth elsewhere).
David Howarth, MP Lib Dem Shadow Justice Secretary is equally forthright. Speaking to El Reg he said: "It’s a mess: there are far too many topics, making it impossible to scrutinise – and equally impossible to avoid the suspicion that the government is trying to sneak stuff in. But it's all so convoluted, it is hard to tell.
"Take one small example: s57 ends with the suitably cryptic clause 'Nothing in this Article imposes criminal liability on any person acting on behalf of, or holding office under, the Crown.'"
This is what has been referred to as the James Bond exemption, and effectively lets government employees off the hook for acts committed overseas. According to David Howarth: "The government have only just passed law on this. So why re-enact this specific immunity clause? Is there some ulterior motive? Or is it just sloppy drafting?
"We can’t tell because in so many places, the committee lacked the time for carrying out proper scrutiny. New proposals on e-commerce (s124) were not properly scrutinised. It looks as though the government intends using pilots as a means to bring about reductions in legal aid.
"But we can’t be sure."
Both Tories and Lib Dems agreed that one of the most dangerous areas being legislated was the idea of secret inquests. In future, if this Bill is passed, any government minister can declare the need for a secret inquest – that is, one without a jury – and the inquest is automatically secret.
According to Edward Garnier, this is "the most controversial of the many contentious aspects of this ridiculously overstuffed Bill".
David Howarth went further, noting that the government had given assurances that it would attempt to overhaul these proposals but, as there were just two weeks to go before the Bill returns to Parliament, such an overhaul seemed unlikely.
In the end, he suggested, this bill is littered with own goals from start to finish. There may be some traps laid in there by cunning civil servants. Overall, however, the committee view was that "the bill needed tighter drafting even if it was to reflect its own intent".
Mostly cock-up, therefore, rather than conspiracy. ®